IN RE : SRI TAMAL TARAFDAR Vs. STATE

JUDGEMENT

(1.) Heard the learned lawyer for the Petitioner and perused the averments made in this Application. It is submitted that the order dated 26.9.2011 passed by the learned Judicial Magistrate, 2nd Court, Alipore, in connection with M. Case No. 270 of 2010 directing the Petitioner to pay Rs. 3,000/- per month to the Opposite Party-Wife and Rs. 3,000/- for the child, has been passed ex parte. It is further submitted by the learned counsel for the Petitioner-Husband that when the impugned order was passed the present Petitioner was at Vellore. In support of her submission, the learned counsel for the Petitioner produced xerox copy of the medical papers, wherefrom it prima facie clear that at the time of passing of the impugned order the Petitioner was admitted in a hospital at Vellore with head injury. On perusal of the order-sheet it appears that without considering the financial status of the parties and the mode of livelihood the impugned order was passed. The learned counsel for the Petitioner admitted that the Petitioner is an employee of the Custom Department, but no opportunity of hearing was given to the Petitioner.

(2.) Considering the entire aspect of the matter, the impugned order dated 26.9.2011 passed by the learned Judicial Magistrate, 2nd Court, Alipore, in M. Case No. 270 of 2010 is hereby set aside. The learned Judicial Magistrate is directed to give a fresh hearing of the matter after ensuring the attendance of the Petitioner-Husband and pass a reasoned order and if necessary, he may also take evidence on the point of income. The learned Judicial Magistrate is further directed to dispose of the application under section 125 of the Code of Criminal Procedure within three months from the date communication of this order.

(3.) During pendency of hearing of M. Case No. 270 of 2010 the Petitioner-Husband shall go on paying a consolidated sum of Rs. 3,000/- per month to the Opposite Party-Wife within 10th day of each succeeding month.