MALOY BISWAS Vs. SHEFALI BISWAS

JUDGEMENT

(1.) These two revisional application are taken up together for analogous hearing since the arties are the same, and the question involved in both be matters though not same are dependent on each ther. In the Revisional Application No. 932 of 1995 an ex parte order dated March 21,1995 passed by Judicial Magistrate, 2nd Court, Murshidabad in case No. M.R. 112 of 1993 directing the present Petitioner to pay a maintenance allowance of a sum of Rs. 500 in the favour of O.P. No. 1 stated to be the wife is in issue.

(2.) The contention of the Petitioner is that the O.P. No. 1 claiming herself to the wife of the Petitioner filed an application under Sec. 125 Code of Criminal Procedure in he said Court for a sum of Rs. 500 as maintenance allowance per month on the ground that her husband was neglecting and also refusing to maintain her. The Petitioner appeared in that proceeding and contested the same denying the relationship as husband and wife. His specific objection is that the marriage did not take place between the parties.

(3.) It is also the specific case of the Petitioner that he filed a Civil Suit being O.S.155 of 1992 in the Court of Munsif, First Court, Murshidabad praying for a declaration that there was no relationship of husband and wife between the two and for consequential reliefs. He also filed an application before the Judicial Magistrate for stay of the proceeding under Sec. 125 of Code of Criminal Procedure till the decision of the other Suit. By an order dated January 19, 1993 the said prayer was allowed. The Petitioner was under the impression that the proceeding under Sec. 125 of Code of Criminal Procedure in view of the stay order of the Munsif is not continuing but all of a sudden on March 23, 1994 he got an information that an order of maintenance was passed in the proceeding under Sec. 125 of Code of Criminal Procedure by the Judicial Magistrate. After a thorough search he came to know that the O.P. No. 1 preferred a revisional application before the Session Judge against the order of the Judicial Magistrate date January 19, 1993, it was registered as Criminal Motio No. 97 of 1993. After admitting the Motion, the Session Judge directed to issue of notice on the O.P. an subsequently the case was transferred to the Court c Additional Sessions Judge. No notice was served on the present Petitioner and the revisional application was heard ex parte. By order dated December 21, 1994 the order of stay given by the Judicial Magistrate was se aside and a direction was given to dispose of the proceeding under Sec. 125 of Code of Criminal Procedure expeditiously preferably within a period of three (3 months. After the record was received by the Judicial Magistrate he fixed March 20, 1995 for hearing of the case when the O.P. No. 1 was examined ex parte and ar order of maintenance was passed on the next day. As such the Petitioner has challenged the order of the Judicial Magistrate and has prayed for setting aside the same.