- (1.) THE Judgment of the Court was as follows : The present case arises out of an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.
(2.) IT is directed against the order dated 22nd July, 2011 passed by the learned Judicial Magistrate, 2nd Court, Barrackpore, North 24 Parganas in M. Case No. 40 of 2009 rejecting the prayer of the petitioners for maintenance as per the provision of Section 125 of the Code of Criminal Procedure. The relevant facts of the present case are, in a nutshell, as follows :- Petitioners herein initiated the proceeding under Section 125 of the Code of Criminal Procedure against their daughter-in-law praying for their maintenance of Rs. 10,000/- per month as they had no independent source of income and were unable to maintain themselves. It is the case of the petitioners that their elder son Sanjoy Rajak to whom they were dependent, was an employee of Eastern Railway, Kanchrapara Workshop. On 31.10.2003 the said Sanjoy Rajak died and his widow/ O.P. No. 2 herein got the service of her deceased husband on compassionate ground and also on the basis of the no objection certificate issued by the present petitioners to the Railway Authority. It is also the case of the petitioners that they issued the said no objection certificate on being assured by their daughter-in-law that she would maintain them after getting service of her deceased husband. But she did not keep her promise and never provided anything towards their maintenance. On the other hand she after getting the said service left her matrimonial home and started living at her brother's house. As against this, O.P No. 2 contested the said proceeding by filing'written objection wherein the allegations made by the petitioners had been denied. It is specifically stated in that written objection that the petitioners were not entitled to get any maintenance from their widow daughter-in-law as per the provision of Section 125 of the Cr.P.C. Dismissal of the application under Section 125, Cr. P.C had been so prayed for.
(3.) NOW on careful perusal of the records of this case and Annexure- 'P2' at Page No. 26 it appears that during pendency of the proceeding one application was filed on behalf of the opposite party / daughter-in-law praying for dismissal of the proceeding on the ground of non-maintainability of the case. Accordingly, the learned Magistrate after hearing both parties passed the impugned order dismissing the case for maintenance. After taking into consideration all relevant facts and materials on record and giving due regard to the submissions made by the learned Counsel for the petitioners, I think that the only point requiring adjudication is whether or not the impugned order dated 22nd July, 2012 passed by the learned Judicial Magistrate, 2nd Court, Barrackpore, North 24 Parganas in M. Case No. 40 of 2009 is liable to be set aside.;