TOUFIQUE UDDIN, J. - (1.) THIS revision arose out of order dated 23.12.2010 passed by the learned Additional District and Sessions Judge, 3rd Fast Track Court, Alipore, South 24 Paraganas in Criminal Motion No. 210 of 2009 corresponding to Misc. Case No. 21/2003 assailing the final order and judgment dated 20.4.2009 delivered by the learned Judicial Magistrate, 2nd Court, Sealdah in a maintenance proceedings under Section 125 of the Code of Criminal Procedure, 1973 instituted by the Opposite Party No2.
(2.) IN the background of this revision the fact in a nutshell is that the Opposite Party No. 2 is a lawfully wedded wife of the petitioner as the marriage between them was solemnized on 20.5.95 according Hindu Rights. After marriage, the respondent/wife was residing at her matrimonial home at 33/6/2. L.N.C Lane, Kadamtala, P.S. Bantra, Howrah, Pin-711101. On 15.8.97, a child was born out of the wedlock. All on a sudden on 7.8.2000, the wife left her matrimonial home on her own volition for her paternal house. On 6.2.2011, the petitioner was constrained to file an application for restitution of conjugal rights. The said application was disposed of as the respondent/wife came back to her matrimonial home. On 28.9.2002, the said respondent/wife for the last time left her matrimonial home but never returned again. Thereafter, she filed FIR No. 279 dated 29.9.2002 against the relatives and family members under Section 409/406 IPC on fictitious grounds. Simultaneously, the wife filed an application under Section 125 of the Code of Criminal Procedure on 4.2.2003 before the learned Judicial Magistrate, 2nd Court, Sealdah seeking for an order of maintenance stating that the petitioner has enormous source of earning but still he is neglecting to maintain the wife. That maintenance case No. 21/2003 was transferred to the 2nd Court of learned Judicial Magistrate, Sealdah for trial. The petitioner submitted written objection pending trial ad interim maintenance of Rs.2,000 was granted. On conclusion of the trial, learned Judicial Magistrate, 2nd Court, Sealdah by order dated 20.4.2003 granted a sum of R.s.4,000 to the wife and Rs.3,000 to their minor sons as maintenance. The petitioner filed a Mat Suit No. 360/09 under Section 13 of the Hindu Marriage Act, 1955 praying for a decree a divorce. The Mat. Suit was filed on the grounds of desertion. The petitioner also filed a criminal motion No.210/2009 against the order dated 20.4.09 of the learned Judicial Magistrate, 2nd Court, Sealdah.
(3.) THE learned Additional District and Sessions Judge, 3rd Fast Track Court, Alipore, South 24 Paraganas after hearing the matter disposed of the criminal motion by order dated 23.12.10 affirming the impugned order dated 20.4.2009. Inspite of issuance of summons the defendant therein did not appear in the Mat. Suit. So, ex parte order dated 4.2.10 was passed in favour of the petitioner granting a decree of divorce. The petitioner has been paying Rs.2,000 p.m. and till date has paid a sum of Rs. 1,38,000 towards interim maintenance. The petitioner has no means to pay the amount as fixed by the order dated 20.4.2009 passed by the learned Judicial Magistrate, 2nd Court, Sealdah.;