MALLAR MUKHERJEE Vs. RUBY MUKHERJEE

JUDGEMENT

(1.) These two revisional applications have been taken up together for the sake of convenience and as also those are inter- related with each other. In fact, the revisional application under Sec. 115 of C.P.C. being C.O. No. 897 of 2002 was directed against the impugned order No. 55 dated 19.01.2002 passed by Md. A.R. Shah, Additional District Judge, Twelfth Court, Alipore, South 24-Parganas in Miscellaneous Case No. 12 of 1996 arising out of Matrimonial Suit No. 17 of 1996. The revisional application under Sec. 115 of the C.P. Code being C.O. No. 900 of 2002 was directed against the impugned order No. 13 dated 2.1.97 passed by Sri B.K. Lala; Additional District Judge, Twelfth Court, Alipore, South 24 Parganas in connection with Matrimonial Suit No.17 of 1996 in considering applications under Sections 24 and 26 of the Hindu Marriage Act for maintenance of the wife and the child.

(2.) I shall take up the revision being C.O. No. 897 of 2002 first for consideration. It appears from the impugned order No. 55 dated 19.01.2002 that one application under Sec. 151 of the C.P. Code was filed before the learned Judge for reconsideration/recalling the order No. 13 dated 2.1.1997 which was again challenged in C.O. No. 900 of 2002. In fact, the learned Judge appears to have taken up as many as four petitions for consideration in order No. 55 dated 19.01.2002. The first three petitions dated 30.9.1999, 6.1.2000 and 12.6.2001 all relate to the Misc. Case No. 12 of 1996 whereas the other petition was under Order 7 Rule 11 of the Civil Procedure Code dated 12.06.2001 in connection with Matrimonial Suit No. 17 of 1996. The Matrimonial Suit No. 17 of 1996 was instituted by Smt. Ruby Mukherjee against her husband Mr. Mallar Mukherjee for restitution of conjugal rights. In the said Matrimonial suit the petitions were filed under Sections 24 and 26 of the Hindu Marriage Act for her maintenance and for maintenance of her child which was begotten out of her marriage with Mallar Mukherjee. By the impugned order No. 13 dated 2.1.1997 the petition under Sections 24 and 26 of the Hindu Marriage Act was allowed by the learned Judge.

(3.) In order to dispose of the matter it is required to go into the facts of the case in a very short campus. It is contended by the husband Malar that Ruby was his wife. It is claimed by him that he had migrated to Australia on permanent resident Visa as a service-holder and took citizenship of that country on 7.5.1992. It is also claimed that he adopted Adeliade as domicile of his choice since his migration to Australia and since then he has been residing all through at 18, Jenkins Avenue, Whyalla Nonie, South Australia and it is his permanent residence. It is also contended by him that as an Adelaide domicile he came down to Calcutta for the purpose of marriage with Ruby and the said marriage was solemnised with her on 23.11.1993 at Police Quarter, 9, Gokhel Road, Calcutta-20 according to Hindu rites. The said marriage was registered on the next date at 52B, Lake Place, Calcutta-29 according to Hindu Marriage Act. Thereafter Mallar returned to Adelaide on 12.12.1993 making arrangements with Ruby in order to enable her to join him there at Adelaide on receipt of an Australian Visa. It is claimed by Mallar that he took Ruby to Australian High Commission office at Delhi but when the visa was issued to Ruby she avoided coming to Australia to lead matrimonial life with him on this plea or that for which ultimately Mallar filed a divorce case in the Family Court of Adelaide. In the said case Ruby did not enter her appearance despite receipt of notice and as such the decree of divorces was passed against her which was subsequently made absolute in course of time and accordingly both of them ceased to be husband and wife. It further appears from the record that the wife Ruby filed a Title Suit being T.S. No. 73 of 1996 in 10th Court of the Assistant District Judge, Alipore and she obtained an ex parte decree on 25.09.1997 as Mallar did not get any scope to contest the same for non-service of summons upon him at his Australian address. It was a part decree as although the wife obtained the declaration of subsistence of her marriage with Mallar there was no relief granted to her child for which wife Ruby preferred an appeal being Title Appeal No. 32 of 1998 which is still pending before the learned Additional District Judge, 7th Court, Alipore. The MAT Suit No. 17 of 1996 was filed by Ruby under Sec. 9 of the Hindu Marriage Act for restitution of conjugal rights and in the said suit the petitions under Sections 24 and 26 of the said Act were filed for pendente lite maintenance for herself and her child.