CALCUTTA HIGH COURT

Bench: JUSTICE Sadhan Kumar Gupta

SAIBAL DEY
Vs.
CHAITALI DEY ANR. On 11 May 2006

JUDGEMENT

The visualisation of a Court was as follows :

This revisional focus has been elite conflicting a sequence antiquated 22.12.2004 upheld underneath Section 125, Cr.P.C. in Misc. Case No. 116 of 2004 by a Judge, Family Court, Kolkata. Case of a postulant is that O.P. No. 1 is his legally married wife. But shortly after a matrimony difficulty started in between them and finally a O.P. No. 1 left a marital home on 4.8.2003 and given afterwards she is staying during her consanguine house. The O.P/wife filed a rapist box conflicting a postulant and his family members. Subsequently on 30.7.2004 she filed an focus underneath Section 125, Cr.P.C., conflicting a postulant in a Family Court, Kolkata praying for maintenance. The schooled Court subsequent bound 14.9.2004 for a postulant to record uncover means as to because a request for upkeep and ad halt upkeep would not be allowed. However, no routine was served on a petitioner. Inspite of that, a schooled Judge bound 4.11.2004 for ex parte conference and on that day in deficiency of a petitioner, examined a conflicting celebration as declare and authorised a request for halt upkeep to a border of Rs. 3,000 per month and Rs. 10,000 towards lawsuit cost. By a pronounced sequence he also bound 20.12.2004 for ex parte conference of a focus filed underneath Section 125, Cr.P.C. On 22.12.2004 a box was authorised ex parte in foster of a O.P/wife and a schooled Judge destined a petitioner/husband to compensate Rs. 3,000 per month to his mother towards upkeep and to compensate a lawsuit cost of Rs. 10,000. According to a postulant a impugned order, as upheld by a Court below, suffers from element illegality. There was no discuss whatsoever in a sequence of a schooled Judge that a postulant was intentionally escaped a coming in a Court below. The postulant has serve claimed that a schooled Judge, before flitting a impugned sequence did not request his authorised mind during all and whimsically and mechanically authorised a request for upkeep in foster of a wife. He has serve claimed that his monthly income does not surpass Rs. 3,000 and a schooled Judge was not fit in relying on a matter done by a mother per a purported fanciful income of a petitioner/husband. No reason whatsoever was reserved to a volume of lawsuit cost of Rs. 10,000, as upheld in foster of a wife. Being depressed by a impugned order, as upheld by a schooled Court subsequent conflicting him, a petitioner/husband has elite this revisional focus on a belligerent that a order, as upheld by a Court subsequent suffers from element illegality and though any basement whatsoever and as it has caused disaster of justice, so this Court, in practice of a energy underneath Section 482, Cr.P.C. should meddle into a matter.

2. Learned Advocate for a O.P./ mother on a other palm submits that a impugned order, as upheld by a schooled Court subsequent is ideally fit and nonetheless a petitioner/husband was wakeful of a proceeding, still as he did not take any step so a schooled Court subsequent was fit in pierce ex parte conflicting a petitioner/husband. According to him, as there is no illegality in a pronounced order, so there is no range for division by this Court. He serve argued that there is pill supposing in Section 126, Cr.P.C. for environment aside a ex parte sequence and though invoking such office it is not slight for a postulant to come directly to a High Court for environment aside a impugned order. In this respect, he has cited preference in Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors., AIR 1983 SC 67.

3. we have listened a submissions of a schooled Advocates for both a sides and also perused a orders as upheld by a schooled Court below. So distant as a preference reported in AIR 1983 SC 67, (supra) is endangered it appears that a pronounced preference was upheld in a box filed as per supplies of Prevention of Food Adulteration Act when a request for quashing of a rapist pierce was done before a High Court. It has been reason in a pronounced preference that fundamental powers underneath Section 482 of a Cr.P.C. can be exercised usually when no other pill is accessible to a contractor and not where a specific pill is supposing in a statute. There can't be any brawl per a authorised element as enunciated by a Apex Court. But so distant as a benefaction box is concerned, it appears that it is a pierce filed underneath Section 125, Cr.P.C. This Section 125, Cr.P.C, has been introduced in a government usually to yield upkeep to a honourable persons and in sequence to forestall vagrancy. Of march there is sustenance in Section 126, Cr.P.C. for environment aside a ex parte sequence of a Court endangered by display sufficient reasons, though during a same time we contingency not forget that a really basement of a order, as upheld by a schooled Court subsequent is underneath plea before this Court.

It has been purported by a father that a schooled Court subsequent mechanically and whimsically upheld a ex parte sequence both in honour of halt and final upkeep in foster of a wife. Learned Advocate for a petitioner, in support of this row has relied on a decisions in Balan Nair v. Bhavani Amma Valsalamma Ors., AIR 1987 Ker. 110; Sunil Kumar Sabharwal v. Mrs. Neelam Sabharwal Ors., we (1991) DMC 547 (DB)=1991 Cr.LJ 2056; and S. Bhupinder Singh Makkar v. Narinder Kaur Ors., II (1990) DMC 214=1990 Cr.LJ 2265. we have deliberate all those decisions and a submissions of a schooled Advocates for both a sides. we have already forked out that this petition has been filed as per supplies of Section 482, Cr.P.C. It is a certified position that High Court will not demur to meddle into an sequence where there is perceptible blunder on a face of a sequence itself and when it appears clearly to a High Court that a sequence in doubt has caused disaster of justice. Undoubtedly a postulant could pierce a Court subsequent for environment aside a ex parte order. But that does not meant that a postulant will be debarred from sketch courtesy of this Court in sequence to uncover that a sequence of a schooled Court subsequent has indeed caused disaster of justice. Keeping this position in mind, let us now see either it will be satisfactory and correct for this Court to meddle into a sequence as upheld by a schooled Court below. If we demeanour into a supplies of Section 125, Cr.P.C. afterwards it will seem that before pierce ex parte it is a avocation of a Court to come to a transparent anticipating that a father was intentionally avoiding a pronounced pierce by not appearing before a Court. But if we demeanour into a duplicate of a orders, as upheld by a Court below, afterwards it will seem that nowhere it has been mentioned in those orders that a father was avoiding a pronounced pierce intentionally. True it is that on 14.9.2004 a schooled Court subsequent observed— “Mr. Saikat Kundu appearing for a O.P. has submitted that Saibal Dey is out of station. Therefore, he can't seem today.

In a resources a O.P is wakeful of a case. With this observation, a schooled Court subsequent destined that a mother need not take any step for use of notice on a husband. But a sequence antiquated 14.9.2004 does not divulge who is this Mr. Saikat Kundu. The schooled Court also did not observe as to either this Saikat Kundu had any management to seem for a husband. It is also not transparent from a sequence as to either Mr. Kundu is a practising Advocate of a Court subsequent or not. In fact, a sequence antiquated 14.9.2004 is full of ambiguity and can't be of any assistance for a O.P/wife. It serve appears that on 7.10.2004 as a petitioner/husband was found absent, so a schooled Magistrate bound subsequent date for ex parte hearing. Nowhere it has been settled in that sequence piece that a schooled Court subsequent was confident that a father was escaped a pronounced rapist proceeding. In deficiency of such a transparent anticipating of a Court below, we am fearful that it was not slight for a pronounced Court to ensue with a matter ex parte. Under such circumstances, we have got no perplexity to reason that a ex parte sequence as upheld by a Court subsequent conflicting a father suffers from element irregularity. we have also deliberate a order, as upheld by a schooled Court subsequent permitting upkeep in foster of a wife. It appears that while extenuation a request for halt upkeep a schooled Court authorised Rs. 3,000 per month in foster of a mother towards her upkeep and Rs. 10,000 towards lawsuit cost. Same volume was awarded in foster of a mother while disposing of a petition underneath Section 125, Cr.P.C. finally. From a record, it appears that there is most no basement of this anticipating of a schooled Court below. He simply relied on a verbal matter of a mother to a outcome that a father was earning about Rs. 40,000 per month. There is no brawl that even in an ex parte sequence it is a avocation of a Court to give correct logic as to because such a fanciful volume of upkeep as good as lawsuit cost was awarded in foster of a mother nonetheless there is no concrete justification in support of a explain of a income of a husband. The sequence of a Court subsequent in this respect, appears to me to be really most dainty and though any basement whatsoever. Under such circumstances, we consider that this order, as upheld by a schooled Court below, has positively caused disaster of probity and in my deliberate opinion pronounced sequence should immediately be set aside by approach of involvement by this Court and suitable instruction should be upheld for deliberation a box of a particular parties in correct viewpoint by giving opportunities to them to cite justification and in a meantime adequate sustenance should be done to yield sufficient halt upkeep and lawsuit cost in foster of a mother gripping in mind, a scheme, as formulated by a Legislature while enacting a sustenance of Section 125, Cr.P.C. in a government book. To my mind, it will be correct and satisfactory if a ex parte sequence is set aside and a schooled Court is destined to dispose of a matter during a really early date and in a meant time we consider that an volume of Rs. 2,000 per month should be awarded in foster of a mother towards her halt upkeep and a serve sum of Rs. 2,500 should also be awarded in her foster towards lawsuit cost so that she can effectively competition a proceeding.

4. In a result, a revisional focus succeeds on contest. The sequence antiquated 22.12.2004 upheld underneath Section 125, Cr.P.C in Misc. Case No. 116 of 2004 by a schooled Trial Judge, Family Court, Kolkata is set aside. The matter is sent behind on remand to a Court subsequent with a instruction that he will dispose of a pronounced upkeep pierce within a duration of 3 months from a date of a filing created conflict by a father who is destined to record such created conflict within a duration of one month from a date of this order, unwell that a schooled Court subsequent will be during autocracy to ensue with a matter ex parte conflicting a father and to dispose of a focus filed underneath Section 125, Cr.P.C. by recording a justification on interest of a mother and he will be during autocracy to pass a reasoned sequence thereafter. The father is destined to compensate Rs. 2,000 per month towards halt upkeep in foster of a mother and Rs. 2,500 in her foster towards lawsuit cost. This sequence of halt upkeep will be effective from December, 2004. The father is destined to compensate a arrear upkeep and a stream volume of upkeep along with a lawsuit cost within dual months from this day. However we make it really transparent that this duration for remuneration of upkeep will in no approach extend a duration that has been mentioned progressing for ordering of a categorical upkeep application. we also make it really transparent that a schooled Court subsequent will dispose of a categorical upkeep focus exclusively on a basement of a materials accessible before him though being shabby in anyway by any regard that competence have been done by this Court in this revisional application.

5. Send a duplicate of this sequence to a Court subsequent immediately for information and holding required action.

Revision focus allowed..