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Calcutta High Court · body

2009 DIGILAW 767 (CAL)

Tanushri Das Roy v. STATE OF WEST BENGAL

2009-09-23

ASHIM KUMAR ROY

body2009
Judgment :- (1). The wife/petitioner challenged an order passed in connection with a proceeding under Section 125 of the Code of Criminal Procedure on the ground that the maintenance was granted to her from the date of the order not from the date of making the application. (2). Mr. Kishore Mukherjee, the learned Counsel appearing on behalf of the petitioner/wife submitted before this Court that the application for maintenance was filed as on July 27, 2007 but in spite of receipt of the summons the husband/opposite party did not appear in the Court till February, 2008 and thereafter final order was passed on September 15, 2008. He further submitted that together with the application for maintenance the petitioner/wife has also filed an application for interim maintenance, and thus she is entitled to maintenance from the date of the application. (3). Heard the learned Advocate appearing on behalf of the petitioner. Perused the impugned order and other materials on record. (4). In spite of repeated calls none appears on behalf of the opposite party/husband. Affidavit of service filed in Court is already with the records. (5). In this case the marriage has not been disputed and it is also not disputed that the opposite party/husband is a medical practitioner and is attached to the E.S.I. Hospital and earns about Rs. 30,000/- and odd per month as it appears from the Salary Certificate exhibited during the proceeding. It is true that the application for maintenance was filed in July, 2007 and along with the same the application for interim maintenance was also moved. Thereafter, in July, 2008 the opposite party/husband entered appearance but no order for interim maintenance was passed. While passing the final order of maintenance the learned Magistrate has not assigned any reason for awarding maintenance from the date of order instead of from the date of makina of application a thus the some is not in accordance with law. According to the provisions of Section 354 (6) of the Code it is incumbent upon the learned Court below while making any final order in connection with a proceeding under Section 125 of the Code to record reasons for the decision. According to the provisions of Section 354 (6) of the Code it is incumbent upon the learned Court below while making any final order in connection with a proceeding under Section 125 of the Code to record reasons for the decision. However, in the instant case, the learned Court below has not assigned any reason for not awarding maintenance from the date of the application and as such the order impugned to that extent is illegal and the same deserves interference of this Court. Accordingly, the order in question so far that relates to the payment of maintenance from the date of the order is set aside and it is directed that the order of maintenance shall take effect from the date of application. It is further directed the amount of arrear maintenance that may be accrued due to the effect of this order be liquidated in 20 monthly equal instalments and be paid along with the current maintenance. (6). This application thus stands disposed of.