- (1.) The judgement and order dated 5th May, 2009 passed by the learned Additional Chief Judicial Magistrate, Contai in Misc. Case No. 174/05 in response to an application under section 125 of the Code of Criminal Procedure is now under challenge before this Court.
(2.) Heard learned Counsel for the petitioner/husband who submits that the learned Court did not take into consideration the fact that the present petitioner filed an application under section 9 of the Hindu Marriage Act praying for restitution of conjugal right. The said case was decreed in favour of the present petitioner but the opposite party wife did not return to her husband's place. This was followed by filing a suit for decree of divorce on the ground of cruelty and desertion. In connection with the said case, an application under section 24 of the Hindu Marriage Act was also filed seeking alimony by the present opposite party/wife. The said application was dismissed by the learned Court. Ignoring all these facts and materials, according to the learned Counsel for the petitioner, learned Magistrate granted maintenance to the tune of Rs. l,000/-per month. In this context, attention of the Court is also invited to sub-section (2) of section 127 of the Code of Criminal Procedure. In response to this, learned Counsel for the opposite party/wife submits that the learned Magistrate being satisfied on the basis of the evidence on record granted maintenance to the tune of Rs.1,000/- per month. The marriage between the parties, in fact, is admitted position in this case. It is not in dispute that the present opposite party/wife is living separately from her husband. Question only arises as to how such separate living is justified. This is a matter for the learned Court to decide. Next, it is to be ascertained as to whether the opposite party/wife is able to maintain herself or not and then again, whether the present petitioner/husband despite having an income has refused or neglected to maintain his wife. These are the various factors required to be taken into consideration while dealing with an application under section 125 of the Code of Criminal Procedure. It, however, appears that the fact that an application under section 24 of the Hindu Marriage Act seeking alimony as filed by the present opposite party/wife before the learned Matrimonial Court was dismissed does not appear to have been dealt with by the learned Court of Magistrate. Learned Counsel for the petitioner produces a copy of the show-cause filed before the learned Court which also does not clearly refer that significant aspect.
(3.) No doubt, learned Magistrate has dealt with the evidence available before it while granting maintenance and quantifying the amount as Rs.1,000/- per month. But it is amply clear from the discussion as made hereinbefore that the entire thing has not been taken into proper and effective consideration. Thus, in the best interest of justice, the impugned order is set aside and is sent back on remand, of course, for a decision on the basis of materials already on record and with liberty to the parties to file supplementary affidavit in support of respective claims and to adduce further evidence, if any. The present application being C.R.R. No. 2235 of 2009 is, thus, disposed of with the aforesaid direction and with a request to the learned Court to ensure disposal of the said case within a period of three months from the date of communication of this order.;