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2010 DIGILAW 445 (CAL)

Tarun Bhowmick v. STATE OF WEST BENGAL

2010-04-26

ASHIM KUMAR ROY

body2010
JUDGMENT 1. Heard Mr. Mrinal Kanti Mukherjee, learned Advocate for the petitioner as well as Mr. Puspal Satpathy, learned Advocate for the opposite party/wife and Mr. Swapan Kumar Mallick, learned Advocate for the State. Perused the impugned order and the other materials on record. 2. Against an ex parte order of awarding maintenance to the wife/opposite party, the present petitioner filed an application under section 126(2) of the Code of Criminal Procedure for recalling of the said order. By an order passed on October 11,2007 in connection with the said application, the learned Magistrate allowed the same and set aside the order for payment of maintenance on condition that in the meantime the petitioner shall liquidate the entire arrear maintenance with 15 working days and shall file his written objection on condition if the husband/petitioner fails to comply with the order, the order of granting ex parte maintenance shall stand revived and the order of setting aside of the ex parte interim order shall stand automatically vacated. 3. Having gone through the order passed on 11.10.2007, I find that the learned Judge has already allowed the petitioner's application under section 126(2) of the Code of Criminal Procedure with contest and set aside the ex parte order passed on 16.10.2006 in connection with the maintenance proceedings but on condition of payment of arrear maintenance and on submission of written objection within 15 working days. Although the petitioner has paid the arrear maintenance but it is true that he could not file the objection within the stipulated period. 4. Once an ex parte order of maintenance passed under section 125 of the Code is set aside under section 126(2) of the Code of Criminal Procedure on contest the main maintenance application stand restored and same has to be disposed of afresh on merit and in accordance with law. While passing any order under section 126(2) of the Code of Criminal Procedure, setting aside an order of ex parte maintenance the learned Magistrate cannot pass such order imposing a condition which would amount to recall of his order of setting aside of ex parte order of maintenance, which is final in nature for the simple reason a Criminal Court below has no power to review or recall any final order passed by it. It is true according to the proviso to section 126(2) of the Code of Criminal Procedure, the order of ex parte maintenance can be set aside subject to such terms including terms as to payment of cost to the opposite party/wife as the Magistrate may think just and proper. The word "such terms" obviously does not includes passing any order which the learned Magistrate is not otherwise legally empowered to pass. However, in a situation like this where a husband after obtaining an order in his favour from Court wherein the ex parte order of maintenance passed against him is set aside, started willfully neglecting to attend the Court and avoiding his participation in the maintenance proceeding then in that case the Court is not powerless to proceed against the husband in accordance with law. In such a situation it would be more appropriate for the Court to once again proceed with the maintenance proceeding ex parte and make a final order. I have no doubt the conduct of the husband is highly deplorable and not at scrupulous but as the order of ex parte maintenance was set aside by the Court below on merit, I am of the opinion it would be conducive in the interest of justice the same to be disposed of finally in accordance with law that too on merit. Accordingly, the order impugned is set aside. 5. The learned Magistrate is directed to dispose of the main maintenance proceeding in accordance with law within four months from the date of communication of this order. He is directed to proceed with the matter on day to day basis until its conclusion and not to grant any adjournment of the hearing of the case unless the Court finds the same is necessary at the instance of the parties for ends of justice or due to the Court reasons. In the meantime; the wife/opposite party shall have the liberty to approach the learned Court below for interim maintenance and it is directed that the learned Magistrate shall dispose of such application for interim maintenance positively within two weeks from the date of making of such application. It is further directed both the parties must appear in the Court within five days from the date of communication of this order. It is further directed both the parties must appear in the Court within five days from the date of communication of this order. I also make it clear if it is found that the petitioner is willfully neglecting to attend the Court, then in that case the learned Magistrate shall have the liberty to dispose of the wife's prayer for interim maintenance as well as the main maintenance proceeding ex parte in accordance with law. 6. The criminal revisional application, thus, stands allowed. 7. Let urgent certified copy of this order, if applied for be supplied to the parties at an early date.