Calcutta High Court (Appellete Side)
422/2011 on 3 March, 2011
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
03.03.11 CRR No. 422 if 2011 In Re:- Sk. Aktar Ali petitioner Mr. Swapan Banerjee for the petitioner The subject matter of challenge in this case is an order passed in a criminal revision by the Learned District Judge, Durgapur whereby the learned Judge affirmed an order passed by Learned Additional Chief Judicial Magistrate, Durgapur in connection with a proceeding under Section 125 of the Code of Criminal Procedure awarding an interim maintenance at the rate of Rs. 2000/- per month to the wife-opposite party.
This is a second revision, therefore, the scope of interfering with the same is very limited and this court can entertain such an application if it appears from the evidence on records that such order is patently illegal and is without jurisdiction. At this stage the court has no opportunity to gone into the merits of the case and to adjudicate on the disputed question of facts.
The learned Counsel for the petitioner submitted that the wife-opposite party is not entitled to any interim maintenance because of the fact already she has been divorced by the petitioner, who gave her talak and furthermore after such talak she has re-married but suppressing those fact she has obtained the order of interim maintenance.
In my opinion, whether she is a divorced wife or not and whether after her divorce she has once again married or not, is 2 a question of facts which can only be considered after recording of evidence is over and that stage has not yet reached. In that view of the matter, I am not inclined to interfere with the order impugned. However, the learned court below is directed to make all endeavours to conclude this proceeding within six months from the date of communication of this order. I make it clear that I have not gone into the merits of the case of the petitioner and the petitioner shall have the liberty to raise all the points at the appropriate stage in accordance with law. I further make it clear if the petitioner is able to prove that there is legal and valid talak, then the Learned Magistrate shall proceed in terms of the provision of Muslim Women Protection of Rights & Divorce Act.
With the above observation, this criminal revisional application stands disposed of.
Criminal Section is directed to deliver urgent Photostat certified copy of this order to the parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.)