TAPAS ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The instant Revisional Application by the petitioner-husband is directed against the orders dated 27.2.89, 5.1.91 and 21.9.91 passed by the Learned Additional Judicial Magistrate at Arambagh, District Hooghly, in Misc. Case No. 28/88 J.R. 2/89 before him on the grounds made out therein.

(2.) The opposite-party No. 2-wife (hereinafter referred to as wife) had filed an application before Learned Magistrate against the petitioner-husband (hereinafter referred to as husband) for maintenance under Section 125 of the Code of Criminal Procedure (hereinafter shortened into Code) on the ground that the latter had been refusing and neglecting to maintain her. On the said application being filed, the Learned Magistrate had directed issue of notice by his order dated 16.7.88 upon the husband fixing a number of dates for service return. The service return not having been received, the Learned Magistrate by his order dated 4,1.89 had directed the wife to take steps for serving notice upon the husband by Registered Post with A.D. But the service return there of not having still been received, the Learned Magistrate by his subsequent order dated 13.2.89 had considered the notice to be duly served in terms of the proviso to Sub-rule (2) of Rule 19-A of Order V of the Code of Civil Procedure for the reasons recorded therein, and had fixed the case for ex-parte hearing on 27.2.89. The wife's application under Section 125 of the Code had thereupon been allowed ex-parte by the Learned Magistrate by his order dated 27.2.89. And, by his subsequent order dated 5.1.91, the Learned Magistrate, upon an application by the wife praying for passing necessary orders for getting arrears of maintenance amounting to Rs. 6,600/- only for the period from 15.9.89 to 31.12.90, had again directed issue of notice upon the husband fixing 16.3.91 for service return.

(3.) The husband coming to know of the aforesaid impugned ex-parte orders had filed an application before the Learned Magistrate on 15.3.91 for setting aside the aforesaid ex-parte order dated 27.2.89, which was eventually rejected by the Learned Magistrate by his impugned order dated 21.9.91 for the reasons recorded therein on the ground of limitation relying upon the decision of a Division Bench of this Court in Amar Guha alias Amal Kumar Guha v. State of West Bengal and Anr., 1988 C. Cr. L.R. (Cal.) 272.