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2008 DIGILAW 483 (CAL)

Gautam Kayal v. Bulbul Kayal

2008-05-07

S.K.GUPTA

body2008
Judgment :- (1.) THE application has been filed praying for recalling/modification of the order dated 09/2/2007 passed by this Court ex parte against the petitioner/husband in CRR No. 822 of 2005. (2.) IT is stated in the said petition that the impugned order, as passed by this Court in CRR No. 822 of 2005 was passed in absence of the petitioner/husband. According to the petitioner, the husband had no opportunity to place his case before the Court when the hearing took place. By the impugned order, this Court confirmed the judgment, as passed by the learned Additional Sessions Judge, 5th Court, Alipore in Criminal Motion no. 72 of 2003. By the said order, in fact, the maintenance order, as passed by the learned Judicial Magistrate, 3rd Court, was confirmed by the learned additional Sessions Judge. As against this, the revisional application was filed in the High Court and this Court by its judgment was pleased to modify the said order of the Courts below and directed that the maintenance order will take effect from the date of the filing of the application and not from the date when the order was passed, as directed by both the Courts below. According to the petitioner/husband, this Court was not justified in passing such judgment without giving any opportunity to the husband and it was further submitted that the direction that the order of maintenance shall take effect from the date of the application was also wrong in view of the fact that at the relevant time, the maximum amount of maintenance to be paid by a husband to a wife was restricted to Rs. 500/- per month only. Accordingly, this petition has been filed praying for revealing/modification of the judgment, as passed by this Court on 9/2/2007 in CRR No. 822 of 2005. (3.) THE petition was contested by the opposite party/wife by filing opposition against it. According to the wife, the husband was duly informed about the pendency of the revisional application before this Court and he intentionally did not appear at the time of hearing. It was further contended on behalf of the wife that there is no scope for recalling/modification of the order when the judgment was passed by a criminal Court. According to the wife, the husband was duly informed about the pendency of the revisional application before this Court and he intentionally did not appear at the time of hearing. It was further contended on behalf of the wife that there is no scope for recalling/modification of the order when the judgment was passed by a criminal Court. According to the wife, the order, so passed by this Court with the direction for giving effect to the maintenance order from the date of application was perfectly justified and as such, there is no scope to interfere with the said order at present. (4.) I have considered the submissions of the learned Advocates for both the sides. It is the admitted position that the learned Magistrate allowed rs. 1,500/- per month towards maintenance in favour of the wife and this order was confirmed by the learned Additional Sessions Judge. But it was directed by both the Courts below that maintenance order will take effect from the date of the passing of the order by the learned Magistrate. Being aggrieved, the wife preferred the revisional application when this Court was pleased to hold that the said order of maintenance will be effective from the date of the application and not from the date of passing of the order. It is the contention of the husband that this Court while passing the judgment did not give any opportunity to him for presenting his case. But it appears from the record that sufficient opportunities were given and notice was duly served upon the husband. In spite of service of such notice, if a person does not appear before the Court at the time of hearing, then the Court cannot be blamed for passing an ex parte order. The allegation, as made by the husband in his application to that effect, appears to be not acceptable and as such, I hold that it is not possible for this Court to recall its order dated 9/2/2007 on the basis of such allegation. So this contention of the learned Advocate for the petitioner/husband is rejected. (5.) MR. Roy, learned Advocate for the petitioner/husband submitted that the maintenance application was filed by the wife in the year 1990 and it was disposed of finally by the learned Additional Sessions Judge in the year 2004. According to him, in the year 1990 the maximum amount of maintenance was Rs. (5.) MR. Roy, learned Advocate for the petitioner/husband submitted that the maintenance application was filed by the wife in the year 1990 and it was disposed of finally by the learned Additional Sessions Judge in the year 2004. According to him, in the year 1990 the maximum amount of maintenance was Rs. 500/- per month. But in spite of that, both the Courts below failed to appreciate that aspect and instead fixed the amount at Rs. 1,500/- per month. As such the learned Advocate for the petitioner submits that said order, fixing the amount of Rs. 1,500/-per month should not stand in the eye of law. (6.) LEARNED Advocate for the opposite party/wife argued that Rs. 1,500/- per month was awarded by the learned Magistrate in the year 2003 when the maximum limit was Rs. 1,500/- per month and as such, he submits that there was no illegality in the said order. It may be pointed out here that this amount of Rs. 1,500/- per month towards maintenance was inserted in section 125 of the Cr. P. C. by the amendment which was published in the calcutta Gazette on 22/4/1993. As such, there was no illegality in the orders of the Courts below for fixing the amount @ 1,500/-per month in favour of the wife. But the problem lies elsewhere. This Court by its judgment was pleased to hold that the amount, so fixed in favour of the wife, should be operative from the date of the filing of the application i. e. from the year 1990. This order has practically created some confusions. Apparently it appears that prior to 22/4/1993 the amount of maintenance could not exceed rs. 500/- per month. But this Court directed that the amount of Rs. 1. 500/-should be operative from the date of filing of the application i. e. from the year 1990. It may be pointed out that in between 1990 to 1993 the maximum amount of maintenance was Rs. 500/- per month. As such, if the order, as passed by this Court to the effect that the amount of maintenance to the extent of Rs. 1,500/- will be payable by the husband from the date of filing the application, then to some extent it must be said that it will be against the statute. Since from the date of filing of the application till 22. 4. 1,500/- will be payable by the husband from the date of filing the application, then to some extent it must be said that it will be against the statute. Since from the date of filing of the application till 22. 4. 1993 the amount of maintenance could not exceed Rs. 500/-per month, so it is apparent that the order of this Court to the effect that the amount of Rs. 1,500/-should be payable to the wife from the date of filing the application appears to be improper. Since this direction of this Court appears to be patently improper and against the statute, so I think that it is a fit case where in exercise of the inherent power of this Court, same should be modified in order to give proper relief to the parties in accordance with law. (7.) CONSIDERING all these things, I am of opinion that for the sake of justice the order, as passed by this Court in CRR No. 822 of 2005 on 9. 2. 007 should be modified suitably in order to rectify the defect which is apparent on the face of the record, as discussed above. (8.) IN the result, the CRAN 1020 of 2007 is allowed on contest but without cost. The judgment, as passed on 09/2/2007 in CRR No. 822 of 2005 is modified to the extent that the husband shall pay Rs. 500. 00 per month in favour of the wife from the date of filing of the maintenance application till 21/4/1993 and from 22/4/1993 (when the amendment took place) will pay maintenance to the wife @ Rs. 1,500. 00 per month. There will be no modification in respect of the other parts of the judgment, as passed by this Court in CRR No. 822 of 2005. CRAN 1020 of 2007 is, thus, disposed of. (9.) SEND this modified order to the Court below at once for information and taking necessary action.