Calcutta High Court (Appellete Side)
Ajoy Kumar Shukla vs Priyanka Shukla Nee Mishra on 9 April, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 3501 of 2017
Ajoy Kumar Shukla
-Versus-
Priyanka Shukla nee Mishra
Advocate for the Petitioner : Mr. Md. Sabir Ahmed
Mr. Dhananjoy Banerjee
Advocate for the Opposite Party/Wife : Mr. Anand Keshari
Mr. Sekhar Mukherjee
Heard on : 27.03.2019
Judgment on : 09.04.2019
Madhumati Mitra, J. :
The present application under Section 401 read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner/husband challenging the orders dated 17.02.2017 and 08.08.2017 passed by the Learned Judicial Magistrate, Alipore, South 24 Parganas in Miscellaneous Case no.139 of 2013. By the impugned order dated 17.02.2017 Learned Magistrate rejected the prayer of the petitioner to contest the maintenance proceeding filed by the opposite party under Section 125 of the Code of Criminal Procedure after vacating the order of ex parte hearing and on 08.08.2017 Learned Magistrate passed an order of maintenance ex parte in favour of the opposite party.
By the impugned order dated 08.08.2017 Learned Magistrate has been pleased to allow the prayer for maintenance of the present opposite party under Section125 of the Code of Criminal Procedure ex parte and the present petitioner/husband has been directed to pay Rs.20,000/- per month as maintenance to the present opposite party/wife regularly within 15th day of the next succeeding month. Order of maintenance has been made effective on and from 20.03.2013 i.e from the date of filing of the application for maintenance under Section 125 of the Code of Criminal Procedure. Present petitioner/husband has been further directed by the Learned Magistrate to liquidate the entire outstanding maintenance within ten months from the date of his obtaining knowledge about the order. Liberty has been granted to the opposite party/wife to get the order executed through the process of law.
Present opposite party/wife filed an application under Section 125 of the Code of Criminal Procedure on 20.03.2013 praying for maintenance to the tune of Rs.20,000/- per month for self. Though the application for maintenance was filed on 20.03.2013, but the opposite party/wife succeeded to serve summons only on 03.11.2016. Present petitioner did not turn up in spite of receipt of summons and as such Learned Magistrate was pleased to fix on 16.12.2016 for ex parte hearing. On that date the petitioner/husband filed an application praying for vacating the order of ex parte hearing and thereafter next date of hearing of the maintenance application was posted for ex parte hearing on 17.01.2017 as Learned Magistrate was on leave.
On 11.01.2017 Learned Magistrate heard both sides in full regarding the prayer of vacating the order of ex parte hearing of the petition under Section 125 of the Code of Criminal Procedure. Thereafter, on 17.02.2017 Learned Magistrate was pleased to reject the prayer of the petitioner/husband to vacate the order of ex parte hearing on the ground that the reason shown by the husband was not satisfactory one. Thereafter, 31.03.2017 was fixed for ex parte hearing. Ultimately, on 06.06.2017 the application for maintenance was heard ex parte and on 08.08.2017 order was passed.
In his application under Section 401 read with Section 482 of the Code of Criminal Procedure the petitioner/husband has challenged the impugned order of maintenance on the ground that the Learned Court below failed to consider the conduct of the opposite party/wife that she willfully separated herself from the petitioner and the petitioner/husband tried to take back the wife, but she was not willing to reside with the petitioner. During the course of hearing Learned Advocate for the present petitioner/husband has forcefully contended that the petitioner was not given reasonable opportunity of being heard to contest the application for maintenance by filing written objection. It has been specifically submitted by him that the quantum of maintenance as determined by the Learned Magistrate is excessive and the same has not been assessed properly. He has further stated that it is not possible on the part of the husband to pay the amount of maintenance as fixed by the Learned Magistrate.
In the instant case the application for maintenance has been decided ex parte after proper service of summons. Wife approached for maintenance in the year 2013, but she failed to serve the summons upon the husband in spite of her best efforts as husband resides at Uttar Pradesh. It took about 3 ½ years to serve summons upon the husband. Husband did not turn up in spite of service of summons and as such date for ex parte hearing was fixed. Husband prayed for vacating the order of ex parte hearing, the said prayer of the husband to vacate the order of ex parte hearing was rejected by the Learned Magistrate as the ground assigned by husband was not satisfactory.
Learned Advocate for the petitioner has prayed for an order to set aside the order of maintenance passed by the Learned Magistrate and to send the matter back on remand so that the husband can contest the application for maintenance.
The wife prayed for maintenance as far back as in the year 2013 with an expectation that she would get maintenance as prayed for within a very short period, but hearing of the matter was delayed due to non service of summons and ultimately summons was served in the year 2016 and the petitioner/husband did not turn up in spite of receipt of the summons.
From the case record, it appears that the prayer of the petitioner/husband to vacate the order of ex parte hearing of the application was rejected on 17.02.2017. He did not challenge the said order. He kept mum till the disposal of the maintenance application on 08.08.2017 and thereafter on 31.10.2017 the petitioner has moved before this Court against the ex parte order of maintenance. It appears from the impugned order that the Learned Magistrate convinced about the genuineness of the claim of the wife and granted her maintenance. After knocking at the door of justice for a considerable period the wife got an order of maintenance. If the said order of maintenance is set aside and send back the matter on remand, then the wife will be forced to knock again at the door of justice for hearing of her application for maintenance. Moreover, cases may appear where the husband, take dilatory tactics by deferring the hearing of the matter to the greatest possible extent on various pretext. In view of above, the prayer of the husband to afford him another opportunity of being heard to contest the application for maintenance can be given only by securing the interest of the wife as she was deprived of getting the benefit of maintenance for a long period. Moreover, she even could not pray for interim maintenance as summons was not served upon the husband till November, 2016.
Regarding the prayer of the husband to send back the matter on remand, Learned Counsel for the wife has submitted that in that case the Court should ensure the maintenance of the wife so that she can be properly survived. In the instant case, wife had no occasion to pray for interim maintenance as I have observed earlier. Considering all aspects, I think that the interest of justice would be subserved if the husband is given an opportunity to contest the application for maintenance on certain terms and conditions.
In view of above, the ex parte order of maintenance is hereby set aside subject to compliance with the following conditions by the petitioner/husband:-
1. Petitioner husband is directed to pay interim maintenance to the wife at the rate of Rs.12,000/- per month from the date of filing of the application i.e. on 20.03.2013. The husband is directed to pay all arrears of maintenance up to March, 2019 by way of five successive monthly instalments commencing from May, 2019.
2. Petitioner/husband will pay current monthly interim maintenance to the wife from the month of April, 2019 at the rate of Rs.12,000/- per month within seven days of the each succeeding month.
If the petitioner pays the arrear of interim maintenance as fixed by this Court in terms of this order and goes on paying the interim maintenance month by month in terms of the order, then the Learned Magistrate shall proceed to depose of the maintenance application afresh after given opportunity of being heard to the husband.
Learned Magistrate, in that case, shall depose of the application for maintenance afresh preferably within a period of one year from the date of communication of this order without giving unnecessary adjournment to either of the parties. If the husband makes default in payment of any of the instalments for arrears interim maintenance or monthly maintenance, in that case this order will automatically stand vacated and the order of maintenance passed by the Learned Magistrate on 08.08.2017 shall be revived and shall be binding on the parties to the case. The amount of maintenance as fixed by this Court shall be treated as interim maintenance to be payable till the disposal of the main application.
CRR 3501 of 2017 is disposed of accordingly.
CRAN being no.3580 of 2018 becomes infructuous and stands dismissed.
Let a copy of this order be sent to the Learned Magistrate at once for his information and compliance.
Urgent photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.
(Madhumati Mitra, J.)