Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 58 (CAL)

SK. Hasemul v. Rajura Bibi

2009-02-04

PARTHA SAKHA DATTA

body2009
Judgment :- (1) Heard learned Advocate for the petitioner. (2) The Chief Judicial Magistrate, Malda was hearing an application of the opposite party under Sections 3/4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The petitioner-husband filed an adjournment petition but there was none to move the same and the learned Magistrate at 1.1.20 A.M. proceeded to hear the application ex parte and disposed of the application expart on 12.3.2007. The order was challenged in revision before the learned Sessions Judge of Malda who was not pleased to allow the revision and confirmed the magisterial order on 4.12.2007. Against the order of learned Sessions Judge, this application under Section 482 of Cr. P.C. has been filed. It is submitted by Mr. Banerjee, learned Advocate appearing for the petitioner that the learned Sessions Judge referred to Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986 which provided a proviso under which that if the Magistrate is satisfied that the respondent is willtully avoiding service or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on application made within seven days from the date thereof subject to such terms as to payment of cost to the opposite party as the Magistrate, may think just and proper. (3) Mr. Banerjee submitted that the proviso to Rule 4 of the said Rules does not apply because it is not a case where the respondent was willingly avoiding the service or willingly neglecting to attend the Court. It is submitted that the respondent simply prayed for adjournment by filing a petition but for reasons not known, the application for adjournment could not be moved through the lawyer and this resulted in dismissal of the said application for adjournment. (4) I have heard Mr. Alam, learned Advocate appearing for the opposite party. It is submitted by the learned Advocate for the opposite party that the opposite party has not been paid any amount on account of den-mohar. (5) Having heard the learned Advocates for the parties and having perused the judgment and order of the learned Sessions Judge and that of the order of the learned Magistrate, I am satisfied that the petitioner should be given a chance to contest the application. (5) Having heard the learned Advocates for the parties and having perused the judgment and order of the learned Sessions Judge and that of the order of the learned Magistrate, I am satisfied that the petitioner should be given a chance to contest the application. It is plain that the opposite party filed an application for adjournment which was not moved and as a result of which the learned Magistrate proceeded to hear the application ex parte. (6) In the circumstances, the application is allowed. The order of the Sessions Judge dated 4.12.2007 and the order of the learned Magistrate dated 12.3.2007 are set aside. The learned C.J.M., Malda will give opportunity of hearing to the petitioner to contest the application that without giving any adjournment or any flimsy pretext. The learned Magistrate will hear and dispose of the application as expeditiously as possible preferably within a period of two months from the date of communication of this order. As agreed to by Mr. Banerjee, learned Advocate for the petitioner, the petitioner herein will pay to the opposite party a consolidated sum of Rs. 4,000/-which will be adjusted towards such amount as may be granted by the learned Magistrate on account of denmohar and provision on account of iddat period and future maintenance as is provided in the law within 15 days from the date of the order. (7) Affidavit of service filed be kept with the record. (8) A copy of the order shall be sent to the learned C.J.M., Malda for information and necessary action.