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2000 DIGILAW 106 (CAL)

ASHOKE KUMAR. CHANDRA v. ARPITA CHANDRA

2000-03-03

NURE ALAM CHOWDHURY

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NURE ALAM CHOWDHURY, J. ( 1 ) THIS revision application is directed against the order dated 14. 5. 1996 passed by the learned S. D. J. M. , Berhampore, Murshidabad in M. R. Case No. 262 of 1994 directing the petitioner-husband a Flight Engineer of Indian Air Force (since retired) to pay to the wife-opposite party and her son Annkush Chandra aged about 9 years now, a sum of Rs. 1,000/- and Rs. 500/-respectively per month towards maintenance from the date of the filing of the application by the wife-opposite party under Section 125 of the Code of Criminal Procedure. ( 2 ) IT appears, that it has been alleged by the wife-opposite party in her application under Section 125, Cr. P. C. that she was married to the petitioner on 30. 1. 1986 according to Hindu rites and customs with sufficient amount of dowry and other presents on the occasion and a son was born of that wedlock. But after the birth of the son, the petitioner, a Flight Engineer of Indian Air Force at that time started torturing the opposite party physically and mentally and the torture increased to such an extent that the opposite party had to leaave her matrimonial home with her son on 2. 11. 1993 and since then she has been living with the paternal home with her son without having independent earning of her own to maintain herself and her son and although the petitioner retired, he was earning Rs. 10,000/- (ten thousand) per month in a private firm besides his pension for his service in Indian Air Force but failed and neglected to maintain the opposite party and their son. ( 3 ) IT appears that notice was sent for service on the petitioner from the Court of the learned S. D. J. M. by Registered Post with A/d in respect of the said application but each time the notices returned unserved with postal endorsement "left with address" etc. and at last the learned S. D. J. M. passed the aforesaid exparte order. ( 4 ) LEARNED Counsel appearing on behalf of the petitioner submitted that the ex parte order is liable to be set aside as no notice of the said application was served on him as required in law arid he had no knowledge of the aforesaid proceeding. ( 4 ) LEARNED Counsel appearing on behalf of the petitioner submitted that the ex parte order is liable to be set aside as no notice of the said application was served on him as required in law arid he had no knowledge of the aforesaid proceeding. ( 5 ) IT is further submitted that it has been suppressed by the opposite party before the learned S. D. J. M. that the petitioner filed an application under Section 13 (l) (a) for divorce of the Hindu Marriage Act before the Court of the learned District Judge, Barasat registered as Mat. Suit No. 332 of 1992, later on renumbered as Mat. Suit No. 3 of 1995 and in that suit the opposite party made an application under Section 24 of the Hindu Marriage Act for alimony pendente lite and on that application the learned Additional District Judge, 2nd Court, Barasat had been pleased to direct the petitioner to pay a sum of Rs. 750/- per month to the opposite party and a sum of 250/- per month to her child as alimony for their maintenance as well as Rs. 1,500/- as litigation cost payable in two instalments and the, application under Section 115, C. P. C. against the said order the Hon'ble High Court had been pleased to stay the operation of the said order on payment of a consolidated sum of Rs. 400/- for the opposite party and her child and the petitioner has been paying the same to the opposite party. ( 6 ) IT is submitted on behalf of the opposite party that the opposite party was deliberately avoiding service notice from the Court of the learned S. D. J. M. as he had knowledge of the said application. In support of his contention he has drawn to Annexure "a" (paragraph 8) of the affidavit-in-opposition before this Court. In the said Annexure which is a copy of the written objection of the petitioner against petition of the opposite party under Section 24 of the Hindu Marriage Act in Mat. Suit No. 3 of 1995, it has been stated in paragraph 8 that "that the respondent filed petition under Section 125, Cr. P. C. Just to harass the petitioner". In the said Annexure which is a copy of the written objection of the petitioner against petition of the opposite party under Section 24 of the Hindu Marriage Act in Mat. Suit No. 3 of 1995, it has been stated in paragraph 8 that "that the respondent filed petition under Section 125, Cr. P. C. Just to harass the petitioner". ( 7 ) IT however appears from the impugned order that it was not brought to the notice of the learned S. D. J. M. that the petitioner had been paying a consolidated sum of Rs. 400/- per month to the opposite party as per orders of the Hon'ble High Court as mentioned above. ( 8 ) CONSIDERING the aforesaid facts and circumstances and the submissions of the learned Counsels for the respective parties, the application is disposed of with modification and reduction of the quantum of maintenance to the opposite party and her son to Rs. 700/- and Rs. 400/- per month respectively without any other alteration of the impugned order. There will be no order as to costs, if any, is vacated. ( 9 ) THE revisional application stands disposed of. Department is directed to send down the lower Court records to the Court below forthwith.