ASITA DUTTA Vs. SAMIR KUMAR DUTTA AND ANOTHER

JUDGEMENT

(1.) This Ru e is at the instance of Sm. Asita Dutta, first party petitioner, directed against an order dated the 1st Feb., 1974 passed by Sri K. Mondal, Police Magistrate, Sealdah, on an application for the enforcement of an order of maintenance in case No. M/109 of 1973, enlarging the opposite party on bail.

(2.) The facts leading on to the Rule can be put in a short compass. The first-party filed an application under section 488 of Code of Criminal Procedure, being Case No. M/6 of 1969, against the second party-opposite party No. 1, Samir Kumar Dutta, on the 10th Jan., 1969 and ultimately an order, on consent by the parties, was passed by the learned Magistrate on the 25th May, 1970 directing the second-party husband to pay Rs. 600.00 per month for the maintenance of the petitioner and her two sons, named, Subir Kumar Dutta and Sushanta Dutta. The payments by way of maintenance were made for a few months but were stopped since the month of Dec., 1972. Accordingly an application was filed by the wife on the 24th Sept., 1973 for enforcing the order of maintenance in respect of the arrears. The application was filed before the learned Police Magistrate at Sealdah. The learned Magistrate thereupon by his order of the same date called for the original case records and fixed 1st Oct., 1973 for consideration. On that date he passed a curious order. Although he extended the time for production of the original records, he straight-away issued distress-warrant for realisation of the arrears fixing 26th Oct., 1973 as the next date. On the 22nd Oct., 1973, which was an intermediate date, the husband filed an application praying that the order of issuing distress-warrant may be stayed and the second-party husband may be given an opportunity to make proper submissions on the 26th Oct., 1973. Sri R.N. Chakraborty, Police Magistrate by his order of he same date directed the petition of the husband to be put up on the 26th Oct., 1973 but he rejected the prayer for staying the distress-warrant. On the 26th Oct., 1973 the first-party appeared and the matter was directed to be put up before Sri R.N. Cbakraborty, Magistrate, 1st Class for orders. The next date was fixed in the 7th Nov., 1973 and on that date the matter was adjourned. On the 24th Dec., 1973, Sri R.N. Chakrabory, Police Magistrate passed the following order :

(3.) Mr. Syed Ataunnabi, Advocate (with Mr. Santi Ranjan Goswami, Advocate) appearing in support of the Rule made a short submission. He contended that there is no provision for releasing the defaulter on bail under section 488 of the Code of Criminal Procedure and that the learned Police Magistrate had erred in directing the second party-opposite party No. 1 to be released on a bail of Rs. 500.00 in default to jail custody. Mr. Ataunnabi further submitted on merits that this is a sad tale of a wife, whose husband bad married earlier, going without her maintenance and consequently facing starvation along with her children. Mr. Ataunnabi further submitted that on one ground or other the matter of payment is being delayed to the serious prejudice, of the first-party petitioner. Mr. N.R. Biswas, Advocate (with Messrs. Gurudas Bhattacharjee and Kamalesh Banerjee, Advocates) appearing on behalf of the second party-opposite party No. 1 opposed the Rule. Mr. Biswas submitted that there may be various reasons for not paying the maintenance and justice demands that the reasons for such non-payment should be allowed to be submitted for consideration before the learned Magistrate before the ultimate order is passed. He contended in the next instance that no opportunity was given to the husband who from the very beginning has been trying to make his submissions and as such there has been a contravention of the principles of natural justice. Mr. Biswas ultimately submitted that the circumstances also have changed and the husband has become impecunious and there it is not possible for him to pay the maintenance.