Decided on July 20,1983



N.G.Chaudhuri, J. - (1.) This revisional application under Section 397 of the Code of Criminal Procedure at the instance of the wife in a proceeding under Section 125 of the Code is directed against order dated 13-2-82 passed in Misc. Case 1126 of 1980 by the Judicial Magistrate 1st Class, Howrah. By the order impugned the learned Magistrate has set aside the ex parte order for maintenance, passed in favour of the wife on the application of the opposite party husband under Section 126 of the Code.
(2.) Alleging that marriage between her and opposite party had taken place on 18-9-79 under the Special Marriages Act and the couple lived in the rented premises of the opposite party at 7/1 Girish Banerjee Lane, P. S. Sibpur for sometime, the petitioner wife filed an application under section 125 Cr. P. C. in the Court of S. D. J. M. Howrah on, 23-9-80. Further she alleged that on 9- 2-80 the husband had left her alone in the above noted matrimonial home without making any arrangement for her maintenance and eventually refused to maintain her. She alleged that opposite party was an Assistant Engineer under the C. M. D. A. and had his office at Sech Bhavan, Salt Lake, Calcutta and was getting a salary of Rs. 1000/- per month. In the application the father's name of the opposite party was given as late Bhabatosh Ganguly and his residential address was given as Village Andul Mohuri (Kulya) near Mohuri Cotton Mill, P. 5. Jagacha, District - Howrah and his office address as Executive Engineer, C. M. D. A., Salt Lake, Sech Bhavans 1st, floor, Calcutta - 64. The service returned dated 29-10-80 indicates that the opposite party expressed his reluctance to accept copy of the petition when the same was tendered to him at his residence and the notice was hung up on the front door of his residence. Still the learned Magistrate was cautious and directed service of notice afresh under registered post with acknowledgment due. The application, etc., were sent to the two addresses of the opposite party noted above under registered post. The cover addressed to the opposite partys residence came back with peon's endorsement Refused, dated 12-1-81; and the other cover addressed to the opposite party at his office came back with the peons endoresement Not claimed dated 20-1-81. Thereafter on 17-3-81 the ex-parte order for maintenance of the wife was passed, allowing the wife maintenance at the rate of Rs. 300/- per month from the date of application.
(3.) Thereafter the wife petitioner made various attempts to execute the order by issue of distress warrant. Inspite of the learned Magistrate's order the police did not take any interest in the matter. By order dated 27-7-81 the learned Magistrate ordered a copy of his order to be sent to S. P. Howrah. The order dated 14-9-81 passed by the Magistrate indicates that O.C. Jagacha P. S. had come to the Court in connection with another case and the learned Magistrate drew his attention to the police inaction in the matter of service of D.S. in this case and the O.C. gave him an assurance that the matter would be looked into. Nothing was done and on 1-10.81 fresh D.W. was issued to O.C. Jagacha P.S. From the report dated 15-11.81 of Anil Chatterjee, A.S.I. attached to Jagacha P.S. it transpired that he had been to village Puilla near Mohuri Cotton Mill P.S. Jagacha found one Rashbehari Ganguly son of late Sachin Ganguly but he could not trace out Rashbehari Ganguly son of late Bhabatosh Ganguly of village Kuilla. In the report he indicated that possibly there were mistakes in the warrant regarding the fathers name, the name of the village of the opp. party. The opposite part filed a petition in the court below on 2.12.81 praying for setting the ex parte order passed on 17-3-81. The notable features of this petition are firstly the petition does not contain any verification with the signature of the opposite party, nor is it supported by any affidavit; secondly it is admitted that opposite party had a rented room at 7/1 Girish Banerjee Lane and the opposite party was getting a new house constructed at Pulla, P.S. Jagacha; and thirdly the opposite party alleged that his fathers name is Sachin Gangopadhyay while in the wife's petition it was given as Bhabatosh Ganguly, he did not however indicate if his father was dead and the name of his village was Puillya whereas in the wifes petition it was named as Kulliya. On the point of marriage it was alleged that the marriage did not take place as alleged by the wife and he was made to sign some papers and to go through some formalities under duress and intimidation of some designing men. Lasty it was alleged that the notice of the maintenance proceeding did not reach him.;

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