SHASHI KUMAR NAYAK Vs. RAJ LAXMI

JUDGEMENT

(1.) This petition by Shri Shashi Knmar Nayak has arisen in the following Circumstances. On 20th December, 1976, the res- respondent herein, Smt. Raj Laxmi, filed an application against her husband Shri Shashi Kumar Nayak under section 125 of the Code of Criminal Procedure for maintenance. An order was made by the Magistrate for issuing summons to the husband both in the ordinary way and by registered post. The notices were not received back. On 8th February, 1977, Shri A. K. Srivastava wrote in the order that for some personal reason he did not wish to try the petition and he forwarded the papers to the Sessions Judge for transfer of the case to some other court. The case was transferred to the Court of Shri J. P. Sharma, Metropolitan Magistrate. On 1st April, 1977, the court passed an order for issuing summons to the husband both in the ordinary course as well as by registered acknowledgment due post for 7th May, 1977. Summonses were issued to the husband both in the ordinary course and by registered acknowledgment due post. The summons sent by registered post was received by Shri S. S. Rajput, Officer-in-charge, Watch, Sugar, on 7th April, 1977. The summons sent in the ordinary manner is not on the record and, therefore, it is not possible to say what report was made on it. On 11th April, 1977 Shri S. S. Rajput returned the registered cover along with a letter which reads as under :

(2.) On 7th May 1977, the Magistrate passed fresh orders for service of the summons on the husband for 25th July 1977. Summons was sent for service on the husband through the Deputy Inspector General of Police, Sagar on 27th June 1977. On 12th July 1977, the Superintendent of Police, Sagar, sent the summons to Superintendent of Police, Panna for service on Shri Shashi Kumar Nayak, Deputy Superintendent of Police (Wireless) as Shri Shashi Kumar Nayak had proceeded on one month's leave. It is written in the forwarding letter, which is on record (p. 57), that Shri Nayak is staying at Panna with his father Shri Ram Kumar Nayak, advocate. The report on the summons is that the summons was taken for service on Shri Shashi Kumar Nayak at the house of his father Shri Ram Kumar Nayak where Shri Ram Kumar Nayak was present who informed that Shri Shashi Kumar Nayak had gone to Banaras. On 25th July, 1977, the Magistrate passed fresh orders for service of the summons on the husband both in the ordinary way and by registered acknowledgment due post for 3rd September, 1977. The summons was sent for service on Shri Nayak through the D.I.G. Police Sagar. The summons was again not served and fresh order for service on Shri Nayak was made for 12th September, 1977.

(3.) On 12th September 1977, the wife filed an application under section 126 (2) of the Code of Criminal Procedure. The wife alleged that the notice that was sent to Shri Nayak by registered post for the date 8th February 1977 was duly served upon Shri Nayak. The wife in support of her above assertion filed a letter from the Post Master which states that the registered letter dated 29th January, 1977 was delivered to the addressee on 31st January, 1977. The Post Office also sent a copy of the receipt evidencing the delivery of the letter. The wife further alleged that the husband had in divorce proceedings pending in the Court of the District Judge at Panna filed an application dated 11th April, 1977 for restraining the wife from proceeding with the application for maintenance filed at Delhi and in which the date fixed was 7th May 1977, according to the wife the above would show that the husband knew of the date 7th May, 1977 and he had intentionally not appeared in the case. Along with the application, the wife filed on record a certified copy of the application dated 11th April, 1977.