NALINI RANJAN CHAKRAVARTY Vs. KIRAN RANI CHAKRAVARTY

JUDGEMENT

(1.) The opposite party is the first wife of the petitioner. She made an application before the learned Sub-divisional Magistrate of Katihar under Section 488 of the Code of Criminal Procedure for maintenance on the ground that he had neglected her and refused to maintain her. The petitioner was asked to show cause against this prayer of his wife. He asserted that, as she was an idiot and mentally deranged, he took a second wife in 1947 with her consent and thereafter the opposite party was living separate from him by mutual consent. The learned Magistrate, however, rejected the assertion of the petitioner and allowed a monthly allowance of Rs. 40/- to the opposite party with effect from the 26th September, 1960, on the ground that he had neglected her and refused to maintain her. An application in revision against this order was dismissed on merits by the Additional Sessions Judge of Purnea. Hence, the present application in revision to this Court.

(2.) Mr. B.C. Ghose, who appeared on behalf of the petitioner, submitted that an unusual procedure had been adopted by the learned Magistrate and, therefore, the order granting maintenance to the opposite party was illegal and improper. The application under Section 488 Cr. P. C. was filed on the 24th August, 1959, but it was not signed by anybody. On that date a notice was issued to the husband to show cause why maintenance should not be allowed to the lady. On the 27th May 1960, both parties were present, cause was shown by the husband and the court directed the parties to adduce evidence on the 27th June 1960. On this date, i.e. on 27th June 1960, the case was adjourned, as the trying magistrate was absent. On the 23rd July 1960, the following order was passed.

(3.) Mr. Ghose then submitted that the petitioner was prejudiced, as the wife was not examined by the Magistrate on solemn affirmation when she made the application under Section 488 and that the wife aid not examine any witness before the evidence adduced on behalf of the husband. But, it is well settled that such an application is not a complaint within the meaning of Section 4(h), Criminal Procedure Code, and, therefore, the husband was not in the position of an accused. Moreover, there is nothing on the record to show that the husband was forced to adduce any evidence, even though the wife had not examined herself or any of the witnesses; and, as the evidence of the husband and his witnesses formed a part of the evidence in the case, the learned Magistrate, was absolutely justified in taking the same into consideration and acting upon the admissions made therein.