SATRUGHNA ADAK Vs. SONALI ADAK NEE TUNG

JUDGEMENT

(1.) This revisional application under Section 401, read with Section 482, Cr. P.C. is against an order of the Sub-Divisional Judicial Magistrate, Uluberia, rejecting an application filed by the petitioner for setting aside an ex parte order of maintenance under Section 126(2), Cr. P.C. The learned Magistrate has rejected the application on the basis of a Division Bench judgment of this Court reported in 1988 (3) Crimes 525 : (1989 Cri LJ 488) Amal Guha v. State of West Bengal. In the present case the opposite party wife filed an application under Section 125, Cr. P.C. claiming maintenance at the rate of Rs. 300/- per month against the husband-petitioner. The Magistrate served notice of the application on the husband which was at the first instance returned unserved. Subsequently fresh notice was sent by post and the Magistrate accepted the service as proper. As, however, the husband did not appear to contest the case the same was heard ex parte, after several adjournments, on 20-7-1991. Thereafter, on 27-11-1991 the husband filed an application under S. 126(2), Cr. P.C. stating that he was not served with any notice and that as such he could not appear before the Magistrate to contest the case. This application was opposed by the other party on the ground that it was filed after the expiry of three months which is the period of the limitation fixed for setting aside such an ex parte order. It was claimed by the petitioner husband that limitation would run in this case from the date of knowledge of the ex parte order, but the same was negatived by the Magistrate on the basis of the decision of the Division Bench of this Court referred to above.

(2.) Notice of this revisional application was duly served on the O.P. wife as would be evident from the affidavit of service filed by the petitioner. The O.P., however, did not appear and hence this revisional application is heard ex parte.

(3.) On behalf of the petitioner Mr. Gobindalal Ghosh submits that the Magistrate has not correctly disposed of the application for setting aside the maintenance order and that the Division Bench judgment relied on by him is not applicable here. In this connection he has relied on a good number of decisions of this High Court and other High Courts and claimed that the points discussed in those decisions have not been dealt with in the Division Bench Judgment referred to by the Magistrate and that the ratio decidendi of those decisions has not been negatived by the relevant Division Bench.