S.K.GUPTA, J. - (1.) THIS revisional application has been filed under Sections 397, 401 and 482 of the Cr. PC against the order dated 12.01.2005 passed by the ld. Additional Chief Judicial Magistrate, Sealdah in Case No. M -89 of 2004 wherein he allowed the maintenance case, filed under Section 125 Cr. PC, exparte, by directing the petitioner to pay Rs. 2,500/ - per month to the opposite party towards her maintenance with effect from the date of the order.
(2.) CASE of the petitioner is that he is a member of the Rajya Sabha since April, 1994. On 16.07.2004, the opposite party filed an application under Section 125 of the Cr. PC before the ld. Additional Chief Judicial Magistrate, Sealdah claiming maintenance @ Rs. 5,000/ - per month for herself on the allegation that her marriage with the petitioner took place on 27.08.2003 as per Hindu rites at Kalighat Temple. She has stated in the petition that it was her second marriage. Her first marriage took place in the year 1981 with one Mahadeb Sarkar and out of the said wedlock a son and a daughter were born. She left her first matrimonial house along with children in the year 1993 and started living in her father's house at Madhyamgram. In the later part of the year 1996, the petitioner appointed her to look after his mother. Since then, she was living in the house of the petitioner at Manicktala Main Road. During this time, it has been alleged in the petition, the O.P. and the petitioner developed intimate relationship. As such, at the insistence of the petitioner, the opposite party filed suit for divorce against her first husband and obtained decree on 06.06.2003. The O.P. has further alleged in the said petition filed under Section 125 of the Cr. PC, that she conceived twice at the instance of the petitioner but she was compelled to undertake abortions in a private nursing home in the month of December, 2000 and August, 2001. After obtaining the decree of divorce, the opposite party and the petitioner got themselves married at Kalighat Kali Temple on 27.08.2003. Since then, they started living in the said Manicktala house as husband and wife. Thereafter the present petitioner started living at Delhi and got involved with another woman there. It has further been alleged that the petitioner neglected to maintain the opposite party and ousted her from the said Manicktala house with the help of antisocial elements. The O.P. has further alleged in the said petition that the petitioner is earning about Rs. 25,000/ - per month and is getting other facilities as a member of the Parliament. On the other hand, the O.P. has claimed that she has no income of her own and she is unable to maintain herself. As such, she filed the petition under Section 125 Cr. PC against the petitioner praying for maintenance. On the basis of that, on 16.07.2004 the ld. Additional Chief Judicial Magistrate, Sealdah directed issuance of notice upon the petitioner asking him to show cause by 03.09.2004 thereafter on 03.09.2004 the ld. Magistrate fixed 04.10.2004 for appearance and further order observing that the A/D card was returned after service. The petitioner has claimed that no notice/summon was ever served upon him. On 12.01.2005 the ld. Magistrate recorded statement of the O.P. and thereafter on the same day ld. Magistrate was pleased to pass ex parts order allowing the petition, filed by the O.P. under Section 125 of the Cr. PC, and directed the petitioner to pay Rs. 2,500/ - per month in favour of the O.P. towards her maintenance. According to the petitioner, he was not aware anything about this proceeding as well as about the impugned order as passed by the ld. Magistrate. Only on 26.02.2005 the petitioner was informed by his friends, who are residing at Kolkata that the opposite party obtained an ex parte Order Of maintanance from the Court of the ld. Magistrate. After receiving the said information, the petitioner engaged his Advocate and instructed him to obtain copies of the relevant orders. Said ld. Advocate obtained the certified copies of the orders, as passed by the ld. Magistrate on 28.02.2005 and handed over the same to the petitioner on 01.03.2005. On perusal of the orders passed by the ld. Magistrate, the petitioner for the first time came to know that an ex parts order was passed against the petitioner on the basis of an application filed by the opposite party as per provisions of Section 125 of the Cr. PC. By filing the present revisional application, the petitioner has claimed that the ld. Magistrate was not at all justified in passing the ex parts order against him. It has been claimed that no notice for filing show -cause against the petition under Section 125 of the Cr. PC was served upon the petitioner. Further contention of the petitioner is that the ld. Magistrate did not follow the procedure for service of notice as provided in the Criminal Procedure Code as well as in the Criminal Rules and Orders, as passed by this High Court. Moreover, while deciding the said petition exparte, the ld. Magistrate also did not indicate his reasons as to why the said petition should be heard ex parte. There is nothing in the order to show that the ld. Magistrate was satisfied that the petitioner was wilfully avoiding service of summons and, as such, he decided to proceed with the matter ex parte. The petitioner has claimed that the order, as passed by the ld. Magistrate, suffers from material illegality and it has certainly caused failure of justice. He has prayed, that this Court, by exercising its revisional jurisdiction, should interfere into the said order and the same should be set aside.
(3.) THE O.P. has contested the application and the ld. Advocate for the opposite party submitted that notice was duly served upon the petitioner and as in spite of service of the notice, the petitioner did not appear before the Court, so there was no other alternative for the Court then to dispose of the petition filed under Section 125 of the Cr. PC, ex parte. According to him, the ld. Magistrate was perfectly justified in passing the impugned order by directing the petitioner to pay Rs. 2,500/ - per month to the opposite party towards her maintenance and as such he submits that the revisional application should be rejected.;