BISWANATH BANERJEE Vs. MADHABI BANERJEE

JUDGEMENT

(1.) THIS Revisional application is directed against an order dated 21-1 81 passed by the learned Judicial Magistrate, Serampore in Misc. Case No. 83 of 1979 allowing maintenance allowance at Rs. 200/- per month to the respondent No. 1 and affirmed by the order dated 25-5-81 passed by the learned Sessions Judge, Hooghly in Criminal Motion No. 30 of 1981 subject to reduction in the quantum from Rs. 200/- to Rs. 150/-per month as maintenance allowance for the respondent No. 1 and her minor child.

(2.) THE husband has filed the present application under section 227 of the Constitution of India and the only ground of challenge is that the learned Judicial Magistrate who passed the order for maintenance had no jurisdiction to deal with the application under section 125 of the Code as it had been filed in the Court of the Sub-Divisional judicial Magistrate, Serampore who transferred the said application to the learned judicial Magistrate and such order of transfer is not warranted by law and therefore, the learned Judicial Magistrate had no jurisdiction to pass the impugned order of maintenance.

(3.) THE learned Advocate for the petitioner referred to the provisions of Section 12, section 192 and section 461 (g) of the code in support of his contention that the sub-Divisional Judicial Magistrate has no power to transfer the application under section 125 of the Code filed before him to any other Judicial Magistrate and in case of such transfer, the transferee Magistrate will not be competent to deal with the application and dispose of it according to law. On the other hand, it is submitted by the learned Advocate appearing for the Respondent that the Sub-Divisional Judicial magistrate can send an application under section 125 of the Code filed before him to any other Judicial Magistrate of the First class by way of administrative action as no question of taking cognisance is involved and that the Supreme Court has held in the case of Gopal Das -vs- State of Assam reported in AIR 1961 SC 986 that even in a case of complaint an Additional District magistrate before taking cognizance of the offence can send the complaint to any magistrate for disposal by way of administrative action.