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2000 DIGILAW 595 (CAL)

Shyama Prasad Dutta v. Sujata Dutta

2000-11-30

Malay Kumar Basu

body2000
JUDGMENT Malay Kumar Basu, J.: In this revisional application Shri Shyama Prosad Dutta, the petitioner and the husband of O.P. Smt. Sujata Dutta has challenged the legality and propriety of the order dated 11th December, 1996 passed by Shri S. Banerjee, learned Additional Chief Judicial Magistrate in T.R.No.12/96 whereunder he granted maintenance to the tune of Rs. 3000 (1500 for the wife and 1500 for the child) by virtue of an ex parte order of that date. It was directed in this order that the husband would pay the amount of maintenance with effect from December, 1996 and within the 15th day of every month he would make the payment. 2. Having been aggrieved by this order the husband has preferred this revisional application. His case is that it has wrongly stated by the wife that he earns rupees two lakhs per month and more over the opposite party wife has sufficient source of income of her own and she was living reckless and adulaerious life and under such circumstances if the amount of maintenance as awarded by the learned Magistrate is not sufficiently reduced, it would be great hardship for him to pay such a huge sum every month. It is the further case that the O.P. wife suppressed the facts and misled the court below and obtained the impugned order which therefore is liable to be set aside. 3. On a perusal of the impugned order I find that when the case was called on the date fixed, the petitioner wife was present, but the husband O.P. (the present revisional applicant) was found absent in spite of repeated calls and the petition was not moved by him (vide order dated 10.11.97) and what is more, the learned Counsel of the husband appeared before the court at that stage and submitted before the court that his client had not contacted him, nor had given any instruction for the purpose of conducting the hearing and after making such submission he did not conduct the hearing. Thereafter, the learned Magistrate proceeded to take up the ex parte hearing of the matter. Thereafter, the learned Magistrate proceeded to take up the ex parte hearing of the matter. From the impugned order it also appears that there is an observation of the court below that on the previous date of hearing, that is, 30th November, 1996, also the O.P- husband was absent on calls and the learned Magistrate got the impression that he was not very eager to contest the matter. Thereafter, the learned Magistrate examined the witnesses for the petitioner and after considering the evidences on record he came to his finding that he had no reason to disbelieve the statement of the P.Ws. and according to him the case of the petitioner had been established and therefore he was inclined to allow the petition under section 125 Cr.P.C. for granting maintenance in favour of the wife and thereafter he passed impugned order already discussed above. 4. It is curious to note that the O.P.- husband did not make any serious effort to get this ex parte order set aside or get the original case restored. It appears that he filed a petition to that effect but that petition was not moved and an order was passed by the trial court rejecting the same when the O.P. was found absent on repeated calls on the date on which it was fixed for hearing and none on his behalf moved the same vide order dt. 10.11.97 of the court below. It is conspicuous to note that the O.P. did not take any step thereafter to challenge that order at any time. Therefore, now it cannot lie in his mouth that the said ex parte order is not binding upon him. 5. Now the O.P. has come straightway before this court challenging that ex parte order by pleading some stories of his own, but such stories have no legs to stand upon, inasmuch as, he has not adduced any evidence before the trial court. When the matter was taken up for trial, he did not appear nor he gave any instruction to his counsel and under such circumstances the court below had no other alternative but to hear the matter ex parte and pass an order on the basis of evidence adduced by the petitioner wife. When the matter was taken up for trial, he did not appear nor he gave any instruction to his counsel and under such circumstances the court below had no other alternative but to hear the matter ex parte and pass an order on the basis of evidence adduced by the petitioner wife. Now it appears from the materials on record that there is nothing before the court to disbelieve the unchallenged testimony of the petitioner wife regarding the case he has made out in her petition. Under such circumstances the finding of the court below that the case of the petitioner was satisfactorily established cannot be reversed except on the basis of cogent evidence which, as I have pointed out, is lacking. 6. The challenge is regarding the quantum of maintenance awarded by the court below. The income of the husband has been stated by the wife as rupees two lakhs per month. There is nothing in her cross-examination to lead the court to disbelieve the statement regarding this income. However the learned Magistrate has awarded a sum amounting to rupees three thousands only per month and it is well-known that the recognised principle in this regard is that generally 1/5th of the income of husband may be awarded as the amount of maintenance for the wife and children. Be that as it may, since there is no prayer before me for enhancement of the amount of maintenance I have nothing to pass any order in this respect. To my mind the amount that has been awarded for maintenance by the learned Magistrate is fully justified and equitable and there is absolutely no reason or justification before me for reducing the same (Rs.1500/- for the wife and Rs. 1500/- for the child). 7. In the result, the order impugned is uphold and the revisional application is dismissed. 8. Let xerox certified copy of this order, if applied for, by either of the parties may be supplied as expeditiously as possible. Revisional application dismissed.