SUDHANGSU DAS Vs. SASWATI DAS ALIAS MONDAL

JUDGEMENT

(1.) The judgement and order dated 5th May, 2009 passed by the learned Additional Chief Judicial Magistrate, Contai in Misc. Case No. 174/05 in response to an application under section 125 of the Code of Criminal Procedure is now under challenge before this Court.

(2.) Heard learned Counsel for the petitioner/husband who submits that the learned Court did not take into consideration the fact that the present petitioner filed an application under section 9 of the Hindu Marriage Act praying for restitution of conjugal right. The said case was decreed in favour of the present petitioner but the opposite party wife did not return to her husband's place. This was followed by filing a suit for decree of divorce on the ground of cruelty and desertion. In connection with the said case, an application under section 24 of the Hindu Marriage Act was also filed seeking alimony by the present opposite party/wife. The said application was dismissed by the learned Court. Ignoring all these facts and materials, according to the learned Counsel for the petitioner, learned Magistrate granted maintenance to the tune of Rs. l,000/-per month. In this context, attention of the Court is also invited to sub-section (2) of section 127 of the Code of Criminal Procedure.

(3.) No doubt, learned Magistrate has dealt with the evidence available before it while granting maintenance and quantifying the amount as Rs.1,000/- per month. But it is amply clear from the discussion as made hereinbefore that the entire thing has not been taken into proper and effective consideration. Thus, in the best interest of justice, the impugned order is set aside and is sent back on remand, of course, for a decision on the basis of materials already on record and with liberty to the parties to file supplementary affidavit in support of respective claims and to adduce further evidence, if any.