Calcutta High Court (Appellete Side)
Satyajit Giri vs Putul Giri & Anr on 17 August, 2015
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
7 17.08.2015
NS
Court No.28
C.R.R. 2173 of 2015
Satyajit Giri.
Versus
Putul Giri & anr.
Ms. Karabi Roy ... for the petitioner.
The petitioner claims that he was not given adequate
opportunity to participate in the proceeding under Section 125 of
the Code of Criminal Procedure. It appears that the opposite
party / wife had instituted the proceeding under Section 125 of
the Code of Criminal Procedure against the petitioner alleging
that she was married to the petitioner on 13.03.2006 per Hindu
rites and customs. From the wedlock, one male child was born
who is at present around eight years old. Over the issue of non-
fulfillment of demands of dowry, the opposite party / wife was
subjected to mental and physical torture. Upon the intervention
of the parents of the opposite party and local villagers, the matter
was settled. Thereafter, again torture commenced upon the
opposite party / wife and she was driven out of the matrimonial
home. The petitioner is a bus conductor and it is alleged that he
has five bighas of cultivable land. It is further claimed that he
has income of Rs.15,000/- per month from such sources and the
opposite party / wife admittedly has no source of income.
Accordingly, she prayed for Rs.3,000/- per month for herself and
Rs.2,000/- per month for her minor son.
Notice of proceeding was served upon the opposite
party. The opposite party contested the prayer for interim
maintenance. At that stage upon contest, he was directed to pay
interim maintenance at the rate of Rs.4,500/- per month in all.
He also contested the main matter by filing written statement.
Thereafter, when the matter was fixed for evidence, the opposite
party absented himself and learned Magistrate was constrained to
fix the case for ex-parte hearing on 09.09.2014. On 01.08.2014
the opposite party entered appearance and made a prayer for
setting aside of ex-parte hearing. The said petition was kept with
the record. On the date fixed for recording evidence, the opposite
party again chose not to appear and accordingly, the learned
Magistrate recorded the evidence of the petitioner and passed the
impugned order directing the opposite party to pay Rs.2,500/-
per month for the opposite party and Rs.2,000/- per month for
the minor son, in all Rs.4,5000/- per month..
Learned counsel appearing for the petitioner / husband
submitted that the learned Magistrate did not dispose of the
application for vacating ex parte hearing, on the other hand
proceeded to record the evidence of the opposite party / wife to
the prejudice of the petitioner, hence the impugned order is liable
to set aside. She further submitted that the quantum of
maintenance is disproportionately high.
Having considered the submission of the learned
counsel for the petitioner in the light of the materials on record, I
find that the petitioner is a recalcitrant litigant who chose to
absent himself in the midst of the proceeding for the reasons best
known to him. Petitioner initially contested the proceeding and
filed written objection. He also contested the application for
interim maintenance. Thereafter, the petitioner absented himself
and learned Magistrate was constrained to fix the matter for ex-
parte hearing on 09.09.2014. Petitioner filed an application for
setting aside the ex-parte hearing on 01.08.2014 but for the
reasons best known to him, again absented himself on
09.09.2014, i.e. the date which was fixed for recording evidence of the witness.
In a proceeding under Section 125 of the Code of Criminal Procedure where the petitioner has already filed a written objection and the matter was fixed for recording evidence of the opposite party / wife, I am unable to understand as to what prevented the petitioner from participating in the proceeding and cross-examining of opposite party / wife on the ground that the application for setting aside the ex parte hearing was kept with the record. It is patently a facile and hyper-technical excuse to dilate and delay the proceeding. I am unwilling to permit the petitioner to do so. That apart, learned Magistrate has considered the evidence on record and had fixed the quantum of maintenance at the same level as that of the interim maintenance which was passed upon contest.
Accordingly, I am of the opinion that no prejudice is caused to the petitioner and the quantum of maintenance fixed is not disproportionate to the income of the petitioner and the standard of living of the parties.
Accordingly, I do not find any merit in the application and the same is dismissed.
(Joymalya Bagchi, J.)