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2018 DIGILAW 91 (MEG)

Sontu Boro v. Jostima Hajong

2018-12-10

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Aggrieved by the order dated 12.06.2018 passed by the learned Judicial Magistrate, First Class, Subordinate District Council Court, Garo Hills Autonomous District Council, Tura, petitioner after prescribed period of limitation which is 90 days as per Article 131 of the Limitation Act, 1963 has proposed to file the revision petition for condoning the delay of 68 days, instant application has been filed. Notice has been sent to the respondent under registered cover but AD Card has not been received back. 2. In the larger interest of justice, keeping in view the facts and circumstances more particularly the grant of maintenance, to wait for the respondent who has to come all along from Tura by covering a distance of about 8 hours of road journey, matter is considered in her absence without affecting her genuine rights. 3. Section 397 CrPC, 1973 clothes the court with power to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of any inferior court. While going through the order as is impugned in the revision petition, it is clear that the petitioner and the respondent had tied nuptial knot out of their own will that too, after having been entangled in love Serial No. affair. From the wedlock, one child born is living with the respondent (mother). The respondent (mother) filed an application before the learned Magistrate stating therein, manner, mode and method in pursuance whereof, she was married to the petitioner and then the fact of having given birth to the child, then a cause for living along with her child separately, has alleged that the petitioner started torturing her from the year 2014 which attitude of the petitioner forced her to run away and live at Tura whereas, the petitioner (husband) an employee is serving at Shillong. 4. The petitioner while appearing before the learned Magistrate is recorded not to have denied the facts abovementioned and then learned Magistrate has granted Rs. 10,000/-monthly maintenance in favour of the respondent and her son till her lifetime or till she remarries. 5. It is not denied that the respondent along with her child is living at Tura whereas, petitioner in connection with his services is posted at Shillong and living in Shillong. 6. 10,000/-monthly maintenance in favour of the respondent and her son till her lifetime or till she remarries. 5. It is not denied that the respondent along with her child is living at Tura whereas, petitioner in connection with his services is posted at Shillong and living in Shillong. 6. Learned counsel for the petitioner would submit that the petitioner is ready to take the respondent back into his fold and want to live a smooth life, this aspect of the case has not been considered by the learned Magistrate, therefore, in effect second proviso to sub section 3 of section 125 CrPC, 1973 has been violated. 7. The second proviso provides that if the person offers to maintain his wife but she refuse, learned Magistrate has to consider ground of refusal and to make an order under section 125 CrPC, 1973 notwithstanding any offer, if he is satisfied that there is just ground for refusal by wife which in simple term would mean that wife can refuse to live with her husband on just ground and can claim maintenance. Before passing the order under section 125 CrPC, 1973 at least the learned Magistrate was required to ask the respondent (petitioner therein) reasons for refusal to live separate, same has not been done. 8. To condone the delay then to pass order which is warranted to be passed in the main revision petition, in the given facts and circumstances can be taken care of, otherwise by invoking powers under section 397 CrPC, 1973 therefore, the delay is condoned, revision petition is taken up for disposal, is disposed of with a direction to the learned Magistrate to give reasonable opportunity of hearing to the petitioner regarding his offer to the wife to live with him and also right to the wife to show any valid grounds for refusal to live with her husband. 9. The learned Magistrate after considering the submissions of both the parties shall also make an endeavour for amicable settlement/reconciliation. 10. However, petitioner, shall continue to pay Rs. 10,000/- per month as ordered by the learned Magistrate as maintenance to the respondent and her child. At this stage, learned counsel for the petitioner stated that monthly Rs. 10,000/- are deducted from his salary and is regularly sent to the respondent wife, that shall be continued till the matter is settled finally by the learned Magistrate. 11. 10,000/- per month as ordered by the learned Magistrate as maintenance to the respondent and her child. At this stage, learned counsel for the petitioner stated that monthly Rs. 10,000/- are deducted from his salary and is regularly sent to the respondent wife, that shall be continued till the matter is settled finally by the learned Magistrate. 11. The petitioner shall appear before the Court of the learned Magistrate at Tura on 02.01.2019. In the meanwhile, learned Magistrate (court below) shall also put the respondent on notice for appearance therein on 02.01.2019. 12. Disposed of as above.