GOPAL ADHIKARY Vs. REKHA ADHIKARY

JUDGEMENT

(1.) The impugned order dated 7th February, 2018 passed by the learned A.C.J.M at Basirhat 24 Parganas (North) in MP-24/2017 dismissing the petition under Section 126 of the Criminal Procedure Code is subject of challenge in this revisional application. The wife/opposite party alleging torture, neglect and refusal against her husband instituted a proceeding under Section 125 Cr.P.C praying for maintenance, which was registered as M case 228 of 2016. An ex parte order of maintenance at the rate of Rs.3000/- per month to wife and the minor daughter each was granted for the non-appearance of the husband, who refused to receive the notice of proceeding under Section 125 Cr.P.C. The Court below for the alleged refusal of the notice of proceeding under Section 125 Cr.P.C. by the husband/petitioner considered the same to have been satisfactorily served and proceeded to take up the proceeding ex parte. Ultimately the prayer for maintenance was decided ex parte. The husband/petitioner intending to vacate the ex parte order granting maintenance filed a petition dated 03.05.17 before the court below under Section 126 Cr.P.C, which was dismissed/rejected by the court below, and against the order dismissal/rejection of the prayer under Section 126 Cr.P.C, the husband preferred this revisional application.

(2.) Learned advocate for the petitioner submitted that his address was wrongly mentioned in connection with a proceeding under Section 125 Cr.P.C., and in consequence thereof the notice of proceeding under Section 125 Cr.P.C. could not be served upon him causing serious prejudice to him. It was ardently submitted with much emphasis that an opportunity to contest the proceeding should be given ignoring the technicalities, if there be any, in the process of dispensation of justice. Learned advocate for the op/wife controverting the submission raised by the petitioner submitted that in connection with a proceeding under Section 498A IPC, and a separate proceeding under DV Act, previously instituted by the wife, the petitioner/husband was granted bail and he found his release from that obtaining a bail order furnishing his bail bond with address matching with the address, as recorded in connection with a proceeding under Section 125 Cr.P.C. It was further submitted that earlier the husband instituted a suit for divorce, wherein prayer for alimony was granted and in order to defeat the order granting alimony pendenti lite, the petitioner/husband proceeded to withdraw the suit simply to put the wife under acute financial distress. It was contended that notice of the proceeding was served in the address of the husband, where he ordinarily held his residence, and the service of the notice having been refused by the father of the husband, the presumption of good service was accordingly drawn by the court below. The only point which requires to be addressed by this court is whether the court below was justified in dismissing the petition filed by the petitioner/husband under Section 126 of the Code of Criminal Procedure or not.

(3.) Admittedly the proceeding under Section 125 Cr.P.C. was instituted furnishing address of petitioner/husband as Gopal Adhikari son of Kalosona Adhikari, Thuba Darbeshdanga, within P.S Hasnabad, P.O-Taki, under the District of North 24 Parganas. In course of hearing, the attention of the court was drawn to a xerox copy of certificate, issued by the Councilor, Taki Municipality, enclosed with the supplementary affidavit, furnished in this case, in order to reveal that the petitioner/husband was a resident of Thuba, instead of Thuba Darbeshdanga under PS Hasnabad, PO-Taki, within the District of North 24 Parganas. It was sought to be established that Thuba within the PS Hasnabad is not the same of identical place with that of Thuba, Darbeshdanga Hasnabad. According to petitioner, both Thuba and Thuba Darbeshdanga are not within the same locality within the PS Hasnabad, and as the petitioner/husband is originally resident of Thuba, which was duly certified by the Councilor of Taki Municipality, the proceeding under Section 125 Cr.P.C ought to have been initiated recording the address of husband as Thuba, instead of Thuba Hasnabad within the PS Taki. Whether Thuba under PS Hasnabad is identical with Thuba Hasnabad under same PS being within the same locality is a disputed question of fact. Undenying position is that the petitioner is the husband of the op/wife, who is a driver by profession, and the husband now wants to contest the proceeding under Section 125 Cr.P.C initiated against him by his wife. The ex parte order of maintenance was admittedly granted by the court below observing therein that the opposite party/husband had received the notice of the proceeding served upon him, and even after receipt of the notice, the husband stopped appearing in this case. Thus according to court below, while granting ex parte order of maintenance, it is for the non-appearance of the husband despite receipt of the notice of the proceeding, the opposite party/husband had nothing to controvert, and accepted the case, as made out against him by his wife/op. The service report dated 30.06.16 is very significant to reveal that the notice of the proceeding could not be served upon the petitioner/husband in the address on the ground that his father in the absence of petitioner/husband had refused to accept the same. The order dated 11th July, 2016 noted the service report describing the service to be satisfactorily made without recording the refusal of the father of the petitioner/husband to receive the service. It was in this background, the court below proceeded to hold the ex parte hearing of this case, and granted ex parte order of maintenance. There are materials to reveal that husband previously instituted suit for divorce, when he was asked to pay alimony to his wife, and in consequence thereof, the matrimonial proceeding was withdrawn by the husband. Such conduct of the husband was at all fair and encouraging one. However, when there is some apparent discrepancy with regard to the service report, noted in the order dated 11th July, 2016 vis a vis service report dated 30.06.16, it does not stand to reasons that the finding of the court below, while granting ex party order of maintenance, as regards presumption of service, was rightly reached upon visualizing the service report available before the Court.