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Gopal Adhikary vs Rekha Adhikary on 20 June, 2019

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In the High Court at Calcutta
Criminal Revisional Jurisdication
Appellate Side

Present:-

The Hon’ble Justice Subhasis Dasgupta.

CRR 905 of 2018
Gopal Adhikary
Vs.

Rekha Adhikary

For the petitioner : Mr. Kallol Kumar Basu, Sr. Adv.

For the opposite party : Mr. Satadru Lahiri, Adv.
Mr. Safdar Azam , Adv.

Judgment : 20.06.2019

Subhasis Dasgupta, J:-

The impugned order dated 7th February, 2018 passed by the learned

A.C.J.M at Basirhat 24 Parganas (North) in MP-24/2017 dismissing the petition

under Section 126 of the Criminal Procedure Code is subject of challenge in this

revisional application.

The wife/opposite party alleging torture, neglect and refusal against her

husband instituted a proceeding under Section 125 Cr.P.C praying for

maintenance, which was registered as M case 228 of 2016. An ex parte order of

maintenance at the rate of Rs.3000/- per month to wife and the minor daughter

each was granted for the non-appearance of the husband, who refused to receive

the notice of proceeding under Section 125 Cr.P.C. The Court below for the
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alleged refusal of the notice of proceeding under Section 125 Cr.P.C. by the

husband/petitioner considered the same to have been satisfactorily served and

proceeded to take up the proceeding ex parte. Ultimately the prayer for

maintenance was decided ex parte. The husband/petitioner intending to vacate

the ex parte order granting maintenance filed a petition dated 03.05.17 before the

court below under Section 126 Cr.P.C, which was dismissed/rejected by the

court below, and against the order dismissal/rejection of the prayer under

Section 126 Cr.P.C, the husband preferred this revisional application.

Learned advocate for the petitioner submitted that his address was wrongly

mentioned in connection with a proceeding under Section 125 Cr.P.C., and in

consequence thereof the notice of proceeding under Section 125 Cr.P.C. could

not be served upon him causing serious prejudice to him.

It was ardently submitted with much emphasis that an opportunity to

contest the proceeding should be given ignoring the technicalities, if there be any,

in the process of dispensation of justice.

Learned advocate for the op/wife controverting the submission raised by

the petitioner submitted that in connection with a proceeding under Section

498A IPC, and a separate proceeding under SectionDV Act, previously instituted by the

wife, the petitioner/husband was granted bail and he found his release from that

obtaining a bail order furnishing his bail bond with address matching with the

address, as recorded in connection with a proceeding under Section 125 Cr.P.C.

It was further submitted that earlier the husband instituted a suit for divorce,

wherein prayer for alimony was granted and in order to defeat the order granting
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alimony pendenti lite, the petitioner/husband proceeded to withdraw the suit

simply to put the wife under acute financial distress. It was contended that

notice of the proceeding was served in the address of the husband, where he

ordinarily held his residence, and the service of the notice having been refused by

the father of the husband, the presumption of good service was accordingly

drawn by the court below.

The only point which requires to be addressed by this court is whether the

court below was justified in dismissing the petition filed by the

petitioner/husband under Section 126 of the Code of Criminal Procedure or not.

Admittedly the proceeding under Section 125 Cr.P.C. was instituted

furnishing address of petitioner/husband as Gopal Adhikari son of Kalosona

Adhikari, Thuba Darbeshdanga, within P.S Hasnabad, P.O-Taki, under the

District of North 24 Parganas. In course of hearing, the attention of the court

was drawn to a xerox copy of certificate, issued by the Councilor, Taki

Municipality, enclosed with the supplementary affidavit, furnished in this case,

in order to reveal that the petitioner/husband was a resident of Thuba, instead of

Thuba Darbeshdanga under PS Hasnabad, PO-Taki, within the District of North

24 Parganas. It was sought to be established that Thuba within the PS

Hasnabad is not the same of identical place with that of Thuba, Darbeshdanga

Hasnabad. According to petitioner, both Thuba and Thuba Darbeshdanga are

not within the same locality within the PS Hasnabad, and as the

petitioner/husband is originally resident of Thuba, which was duly certified by

the Councilor of Taki Municipality, the proceeding under Section 125 Cr.P.C
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ought to have been initiated recording the address of husband as Thuba, instead

of Thuba Hasnabad within the PS Taki.

Whether Thuba under PS Hasnabad is identical with Thuba Hasnabad

under same PS being within the same locality is a disputed question of fact.

Undenying position is that the petitioner is the husband of the op/wife, who is a

driver by profession, and the husband now wants to contest the proceeding

under Section 125 Cr.P.C initiated against him by his wife. The ex parte order of

maintenance was admittedly granted by the court below observing therein that

the opposite party/husband had received the notice of the proceeding served

upon him, and even after receipt of the notice, the husband stopped appearing in

this case. Thus according to court below, while granting ex parte order of

maintenance, it is for the non-appearance of the husband despite receipt of the

notice of the proceeding, the opposite party/husband had nothing to controvert,

and accepted the case, as made out against him by his wife/op. The service

report dated 30.06.16 is very significant to reveal that the notice of the

proceeding could not be served upon the petitioner/husband in the address on

the ground that his father in the absence of petitioner/husband had refused to

accept the same. The order dated 11th July, 2016 noted the service report

describing the service to be satisfactorily made without recording the refusal of

the father of the petitioner/husband to receive the service. It was in this

background, the court below proceeded to hold the ex parte hearing of this case,

and granted ex parte order of maintenance. There are materials to reveal that

husband previously instituted suit for divorce, when he was asked to pay
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alimony to his wife, and in consequence thereof, the matrimonial proceeding was

withdrawn by the husband. Such conduct of the husband was at all fair and

encouraging one. However, when there is some apparent discrepancy with

regard to the service report, noted in the order dated 11th July, 2016 vis a vis

service report dated 30.06.16, it does not stand to reasons that the finding of the

court below, while granting ex party order of maintenance, as regards

presumption of service, was rightly reached upon visualizing the service report

available before the Court.

In the view of the matter, if an opportunity to contest the case, what is

most innocuously prayed for, if allowed, irrespective of the technicalities coming

in the process of dispensation of justice, that would not cause any prejudice to

either of the parties to this case subject to payment of compensatory costs, to be

adequately fixed therefor, and if such order is passed that will, however, sub-

serve the purpose of justice.

The impugned order dated 7th February, 2018 passed by the learned

A.C.J.M at Basirhat 24 Parganas (North) in MP-24/2017 under Section 126 of

the Criminal Procedure Code rejecting the petition is set aside. Consequently the

order dated 11.11.16 in Maintenance Case No. 228/16 deciding the case ex

parte, and granting maintenance to the wife at the rate of Rs. 3000/- per month

to petitioner and Rs.3000/- per month to minor daughter each is also set aside,

subject to payment of Rs.10,000/-, to be paid by the petitioner/husband to

wife/op within one month from the date of communication of this order, failing
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which this order shall automatically stand vacated without making any reference

to either of the parties to this case.

The op/wife is directed to initiate a prayer for interim maintenance, if not

already filed in the mean time, and if any such prayer is raised before the court

below, the learned court shall decide the same within one month after the deposit

of the cost by the petitioner/husband giving sufficient opportunities to either of

the parties to this case without granting unnecessary adjournment.

It is further made clear that after the disposal of the interim maintenance,

the court below is expected to put his sincerest effort to secure expeditious

disposal of proceeding under Section 125 Cr.P.C, adhering to the provisions of

law, as applicable in the given set of facts.

The revisional application succeeds.

With this observation, and direction, the revisional application stands

disposed of.

Urgent certified copy of this order, if applied for, be given to the appearing

parties as expeditiously as possible upon compliance with the all necessary

formalities.

(Subhasis Dasgupta, J.)

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