SANJAY DAS Vs. RINKU DAS

JUDGEMENT

(1.) Affidavit of service filed in Court today, be kept on record.

(2.) This is an application directed against several orders passed on 1st December, 2004 by the learned Judicial Magistrate, 1st Class, 2nd Court, Sealdah, South 24-Parganas in M. Case No. 99 of 2004. These orders were passed in respect of an application under section 125 of the Code of Criminal Procedure, 1973, filed by the wife, being the opposite party herein.

(3.) It is the contention of the learned Advocate appearing on behalf of the petitioner that the ex parte order of maintenance passed by the learned Judicial Magistrate on 1st December, 2004, could not have been passed in the facts of the instant case. She submits that on the day, i.e. 1st December, 2004, the learned Advocate representing the husband, had taken out an application before the said learned Judicial Magistrate, requesting the learned Magistrate to grant two months time for filing opposition to the application under section 125 of the Code of Criminal Procedure, due to illness of the said learned Advocate, who specially stated in paragraph 3 of her application that she was suffering from malaria since the third week of November, 2004, and as such, she was unable to draft the opposition to the application under section 125 of the Code of Criminal Procedure. The learned Advocate appearing on behalf of the petitioner further submits that the learned Magistrate ought to have adhered to the procedure laid down under section 126 of the Criminal Procedure Code wherein there is a proviso which says that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made, is wilfully avoiding service, or wilfully neglecting to attend the Court, he may proceed to hear and determine the case ex parte. The learned Advocate submits that her client never wilfully avoided service nor did he wilfully neglect to attend the Court. The learned Magistrate ought to have taken such facts into consideration and especially the fact that the learned Advocate who was representing her client, being the husband, was seriously ill and as such had prayed for some time to file opposition to the application under section 125 of the Code of Criminal Procedure. She submits that in the facts of the instant case, the learned Magistrate ought not to have determined the case ex parte.