Decided on July 20,1983



- (1.) 1. This revisional application under Section 397 of the Criminal Procedure Code at the instance of the wife in a proceeding under Section 125 of the Code is direct-ed against order dated 13-2-1982 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 18-9-1979 under the Special Marriage Act and the couple lived in the rented premises of the opposite party 7/1 Girish Banerjee Lane, P.S. Sibpur for sometime, the petitioner wife filed an application under Section 125, Criminal Procedure Code in the Court of S.D.J.M. Howrah on 23-9-1980. Further she alleged that on 9-2-1980 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.S. Jagacha, District Howrah and his office address as Executive Engineer, C.M.D.A. Salt Lake, Sech Bhavan, 1st floor, Calcutta-64. The service return dated 29-10-1980 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 acknowledgement 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 party's residence came back with peon's endorsement 'Refused' dated 12-1-1981; and the other cover addressed to the opposite party at his office came back with the peon's endorsement 'Not claimed' dated 20-1-1981. Thereafter on 17-3-1981 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. In spite of the learned Magistrate's order the police did not take any interest in the matter. By order dated 27-7-1981 the learned Magistrate ordered a copy of his order to be sent to S.P. Howrah. The order dated 14-9-1981 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 19-10-1981 fresh D.W. was issued to O.C. Jagacha P.S. From the report dated 15-11-1981 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 father's name, the name of the village of the opposite party. The opposite party filed a petition in the court below on 2-12-1981 praying for set-ting (aside?) the ex parte order passed on 17-3-1981. 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 sup-ported by any affidavit; secondly it is admitted that opposite party had a rent-ed room at 7/1 Girish Banerjee Lane and the opposite party was getting a new house constructed at Puillya, P.S. Jagacha; and thirdly the opposite party alleged, that his father's name is Sachin Gangopadhyay while in the wife's peti-tion 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 wife's 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. Lastly, it was alleged that the notice of the maintenance proceeding did not reach him.;

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