- (1.) This revisional application under section 401 read with section 462 of the Code of Criminal Procedure (hereinafter referred to as Code) has been preferred by the husband/ petitioner assailing the order dated 28.7.2004 passed by the learned SDJM, Contai in Misc. Case No. 285/2000 under section 126(2) of the Code dismissing the said application filed by the present petitioner.
(2.) Learned Advocate for the petitioner contended that the opposite party claiming herself as wife filed an application under section 125 of the Code against this petitioner in 1993 and no notice was served upon him. The petitioner is residing at Calcutta for more than 10 years back. The opposite party/wife obtained an ex parte order under section 125 of the Code and he came to know about the ex parte order later on sometime in 2000. Thereafter on 19.9.2000 he filed an application under section 126(2) of the Code before the learned Magistrate along with an application under section 5 of the Limitation Act for condonation of delay. That application was registered as Misc. Case No. 285/ 2000 under section 126(2) of the Code. After evidence the learned Magistrate by the impugned order dated 28.7.2004 dismissed the application filed by the petitioner observing that the petitioner could not produce any document to establish that the petitioner is residing in Calcutta for the last 10 years. Learned Magistrate also observed that notice regarding Misc. Case No. 230/94 in connection with section 125 application was published in a local newspaper and it can be presumed that the husband/petitioner had knowledge about the Misc. Case No. 230/1994. He submitted that there is a ration card in the name of the petitioner issued in the year 1987 to show that he is residing at 84, Biren Roy Read (W), Calcutta-61. Before the learned Magistrate adjournment prayer was made for filing the ration card but the adjournment prayer was rejected and he could not file the ration card or the copy of the ration card before the learned Magistrate. He was denied the reasonable opportunity of placing his document before the learned Magistrate and accordingly, learned Magistrate may be directed to rehear the matter and permission to file the ration card before the learned Magistrate be granted. He also contended that the husband in T.S. No. 219/93 has obtained a decree against defendant who is present opposite party to the effect that she is not his wife and accordingly she cannot claim any maintenance.
(3.) Mrs. Goswami, learned Advocate for the opposite party/wife contended that in the voters list as well as in the ration card she has been described as the wife of the present petitioner. The opposite party filed an application under section 125 of the Code on 16.7.1993 and obtained an ex parte order of maintenance at the rate of Rs. 500/- in all for herself and for her minor son. The husband/petitioner was fully aware of the Misc. Case No.230/ 94 under section 125 of the Code. In the title suit filed by the husband, the wife appeared and filed written statement and therein she categorically mentioned about filing of the misc. case under section 125 of the Code. Accordingly, the husband/petitioner had the knowledge of the Misc. Case No. 230/94 in the year 1995. The learned Magistrate after considering all aspects rightly observed that the petitioner had knowledge of Misc. Case No. 230/94 and he failed to make out sufficient cause for setting aside the ex parte order. The order of the learned Magistrate was correct, legal and proper and it requires no interference.;