MAHABIR AGARWALLA Vs. GITA ROY
HIGH COURT OF CALCUTTA
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D.N.DAS GUPTA, J. -
(1.) THIS Rule was issued upon the Chief Presidency Magistrate, Calcutta, to show cause why the proceedings Under Section 488 of the Code of Criminal Procedure pending in the court of a Presidency Magistrate, Calcutta, should not be quashed.
(2.) THE facts so far as is necessary for the disposal of this matter are as follows: On the 7th January, 1961, an application was made by the opposite party Gita Roy Under Section 488 of the Code of Criminal Procedure in the court of the Additional Chief Presidency Magistrate, Calcutta, praying for maintenance from her husband, the present petitioner, on the ground that having sufficient means he neglected and refused to maintain her. During the pendency of that case a child was born to her and she filed another application for maintenance of that child.
On the 2nd May, 1961, and on some dates subsequent thereto a preliminary point was argued before the learned Presidency Magistrate, namely, that the application was not maintainable in view of the provisions of the Hindu Adoptions and Maintenance Act. On the 18th May, 1961 the learned Magitsrate made the following order:.In any case, without expressing any opinion as to the legal validity of the present applications before me it will not be fair to reject them outright at this stage wittreut hearing on merits. In the interests of justice therefore I would call upon both parties to adduce evidence In support of their respective cases. Fix 19 -6 -61 and 20 -6 -61 for petitioner's evidence. On the 19th June, 1961, the case was adjourned to the 13th July, 1961, and 15th July, 1961, for petitioner's evidence. On the 13th July, 1961, the present petitioner prayed for an adjournment through his lawyer. The prayer Was allowed and the case was adjourned to the 20th and 21st July, 1961 for petitioner's evidence. On the 20th July, 1961, again the petitioner applied for an adjournment and this time that prayer was rejected and the learned Magistrate decided to proceed ex parte. The learned Magistrate observed in his order dated the 20th July, 1951, that the present petitioner was adopting 'dilatory tactics' and that that was causing hardship to Gita Roy, the petitioner in that case. On the 20th July, 1961, two witnesses for the petitioner were examined and the matter was adjourned to the 21st July, 1951, for further hearing. On the 21st July, 1951, the present petitioner filed an application before the learned Magistrate for time to move the High Court. One week's time was allowed to the present petitioner for (the purpose. this Court was moved on the 24th July, 1961, and the abovementioned Rule was issued.
(3.) IT is contently by Mr. N. C. Bwrjee anoearing on behalf of the petitioner that the application Under Section 488 of the Code of Criminal Procedure is not maintainable in view of the provisions of Section 4(b) of the Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956). Section 4 of the Act is quoted below: Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease, to have effect with respect to any matter for which provision is made in this Act:(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.;
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