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2008 DIGILAW 312 (JHR)

Subir Kumar Chakraborty v. State of Jharkhand

2008-03-13

D.K.SINHA

body2008
Order (I.A. No.1525 of 2007) Present interlocutory application has been filed under Section 5 of the Limitation Act for condonation of 92 days' delay in filing the present Cr. Revision which has properly been explained. 2. The delay is condoned. 3. I.A. No. 1525 of 2007 stands disposed of. (Cr. Revision No. 602 of 2007) 4. Heard Mr. K.K. Singh for the petitioner, Mr. Shekhar Kumar, learned counsel for the opposite party no. 2 as also Mr.' Tapas Roy, learned A.P.P. appearing on behalf of the State. 5. The main grievance of the petitioner was that though admittedly opposite party no. 2 Rita Chakraborty was his wife, but order in a proceeding under Section 125 of Cr.P.C. was passed by the Principal Judge, Family Court. Jamshedpur in his absence in Misc. Case No. 30 of 2003 on 12.1.2007, whereby and whereunder he was directed to pay maintenance to the O.P. NO. 2 Rs. 2000/- per month from the month of March, 2003. 6. Mr. K.K. Singh, learned counsel, pointed out that before the proceeding under Section 125 of Cr.P.C., the petitioner had filed a Matrimonial Suit No. 83 of 2002 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in which though the opposite party no. 2 appeared but did not file written statement, despite availability of sufficient opportunity. The suit was decreed in favour of the petitioner and it was found that the petitioner was entitled to get restitution of conjugal rights but even then opposite party no. 2 did not prefer to lead a conjugal life with the petitioner. 7. Assailing the impugned order dated 12.1.2007 in a proceeding under Section 125 of Cr.P.C., learned counsel submitted that the same was passed on erroneous consideration without any documentary evidence of earning of the husband-petitioner though it was stated that he was an employee of Telco and getting salary of Rs. 8,500/-. Petitioner has expressed his willingness to accept and keep his wife with full dignity and honour, but in spite of that she declined to live with him and hence the order impugned is not maintainable and is liable to be set aside. 8. On the other hand, learned counsel for the opposite party no. 8,500/-. Petitioner has expressed his willingness to accept and keep his wife with full dignity and honour, but in spite of that she declined to live with him and hence the order impugned is not maintainable and is liable to be set aside. 8. On the other hand, learned counsel for the opposite party no. 2 submitted that when the petitioner did not appear in spite of notice published in the newspaper "Udai Vani", learned Principal Judge proceeded and after appreciation of the evidence on record including oral evidence of A.W.-1 and A.W.-2 and also finding that the applicant-opposite party no. 2 unable to maintain herself, having no source of income, directed the petitioner to pay Rs. 2000/- per month for her maintenance since March, 2003. 9. Mr. K.K. Singh, learned counsel, submitted that petitioner has been denied the opportunity to place his case before the Principal Judge, Family Court and therefore at least an opportunity may be given to him for resolution of dispute and presentation of his defence after his appearance before the concerned court. 10. I think that prayer of learned counsel for the petitioner requires reasonable consideration and in view of that as also the fact that without any documentary evidence the impugned order has been passed directing the petitioner to pay a sum of Rs. 2000/- per month maintenance to the opposite party no. 2, the order impugned is set aside. Parties are directed to appear within two weeks from the date of receipt of a copy of this order or on the presentation of the certified copy of the order before the Principal Judge, Jamshedpur. In that event, the Principal Judge, after hearing the parties, shall pass order within a reasonable time. No separate notice need be sent to the parties, 11. With these observations, this criminal revision is allowed.