Calcutta High Court (Appellete Side)
Pursuing Of Her Application Under ... vs Unknown on 12 December, 2019
1 35 12.12.2019
C.R.R. 220 of 2019 SB Ct. No. 33 In Re : Moon Moon Chakraborty Ms. Sucharita Roy ... For the petitioner Mr. Kallol Basu Mr. Bratin Kumar Dey .... For the O.P. 1 Opposite party / husband files affidavit-in-opposition. Let it be kept with the record.
This is an application under section 401 read with section 482 of the Code of Criminal Procedure filed by the petitioner / wife challenging the impugned orders dated 30.04.2018 and 03.10.2018 passed by the learned Judicial Magistrate, 3rd Court, Alipore 24 Parganas (South) in Misc. Case No. 24 of 2018.
From the submission made by the learned advocates for the parties, it appears that petitioner/wife has filed an application under section 125 of the Code of Criminal Procedure praying for maintenance. An order of interim maintenance was passed in favour of the wife and the wife filed execution case for recovery of the arrear of maintenance. It is also an admitted fact that the main application under section 125 of the Code of Criminal Procedure has not yet been disposed of on merit. Due to non- appearance of the petitioner / wife the learned Magistrate was pleased to dismiss the application under section 125 of the Code of Criminal Procedure for default. Petitioner / wife approached before the learned Magistrate for restoration of her application under section 125 of the Code of Criminal Procedure by filing an application. The learned Magistrate rejected the said prayer of the wife after observing that the Code of Criminal Procedure does not empower the learned Magistrate to restore the application which is dismissed for default.
Being aggrieved by and dissatisfied with the said order the petitioner / wife has approached before this Court praying for setting 2 aside the impugned order.
Learned counsel appearing for the opposite party / husband has vehemently opposed the prayer of the petitioner by submitting that the conduct of the petitioner is not at all satisfactory and she adopted a dilatory tactics. The application under section 125 of the Code of Criminal Procedure was kept pending due to her conduct.
The learned counsel for the opposite party / husband has pointed out that the petitioner / wife is very much regular to pursue her application for execution of the arrear of interim maintenance but she was deliberately irregular while the application under section 125 of the Code of Criminal Procedure was taken up for hearing.
On the other hand, the learned counsel for the petitioner / wife has submitted that the date for hearing of the application under section 125 of the Code of Criminal Procedure was not posted in the diary of the learned advocate of the petitioner, that is why no step was taken on the relevant date. As a result the application was dismissed for default.
Every matter/ dispute requires to be disposed of on merit. Moreso, the reason for non-appearance before the Court on the date of hearing was due to non-posting of the date of hearing Having regard to the submissions made by the learned advocates for the parties, I am of the view that another opportunity may be given to the petitioner / wife to proceed with her application under section 125 of the Code of Criminal Procedure before the learned Court below.
As such the impugned orders passed by the learned Magistrate are set aside. The application under section 125 of the Code of Criminal Procedure stands revived to its file and number.
At the same time the petitioner / wife is directed to be regular and diligent in the matter of pursuing of her application under section 125 of the Code of Criminal Procedure.
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The learned Magistrate is requested to dispose of application under section 125 of the Code of Criminal Procedure as early as possible preferably within a period of six months from the date of communication of this order without granting any unnecessary adjournment to either of the parties.
Thus the revisional application stands disposed of. Urgent certified photostat copy of this order, if applied for, be given to the parties, upon compliance of requisite formalities.
(Madhumati Mitra, J.)