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HIGH COURT OF CALCUTTA
Talukdar
HEMENDRA NATH CHOWDHURY - Appellant
Versus
ARCHANA CHOWDHURY - Respondent
Criminal Revn. 41 Of 1970
Decided On : DECEMBER 22, 1970
CRIMINAL PROCEDURE CODE - Section 488(6) - Maintenance - Ex parte order - Setting aside - Limitation - Service of notice - Procedure - Inherent powers of the court.
Fact of the Case:
The petitioner, Hemendra Nath Chowdhury, challenged an ex parte order of maintenance passed against him under Section 488 of the Code of Criminal Procedure (CrPC) and a subsequent order directing the issue of a distress warrant against him. The petitioner's wife, Archana Chowdhury, had filed an application under Section 488 CrPC claiming maintenance, alleging that the petitioner had left her and was neglecting to maintain her.
Finding of the Court:
The court held that the ex parte order of maintenance was not in accordance with the procedure established by law, as the magistrate had not been satisfied that the petitioner was wilfully avoiding service or neglecting to attend court, as required by the proviso to Section 488(6) CrPC. The court also held that the service of notice on the petitioner was defective, as it was not done in accordance with the provisions of Sections 69 to 71 CrPC.
Issues: 1. Whether the ex parte order of maintenance was passed in accordance with the procedure established by law? 2. Whether the service of notice on the petitioner was defective?
Ratio Decidendi: 1. The court held that the ex parte order of maintenance was not in accordance with the procedure established by law, as the magistrate had not been satisfied that the petitioner was wilfully avoiding service or neglecting to attend court, as required by the proviso to Section 488(6) CrPC. The court also held that the service of notice on the petitioner was defective, as it was not done in accordance with the provisions of Sections 69 to 71 CrPC. 2. The court held that the ex parte order of maintenance was not in accordance with the procedure established by law, as the magistrate had not been satisfied that the petitioner was wilfully avoiding service or neglecting to attend court, as required by the proviso to Section 488(6) CrPC. The court also held that the service of notice on the petitioner was defective, as it was not done in accordance with the provisions of Sections 69 to 71 CrPC.
Final Decision: The court set aside the ex parte order of maintenance and the subsequent order directing the issue of a distress warrant against the petitioner. The court directed the magistrate to dispose of the petitioner's application for setting aside the ex parte order of maintenance in accordance with law and expeditiously, after giving the petitioner an opportunity of being heard.
( 1 ) THIS Rule is at the instance of the second party-petitioner, Hemendra Nath Chowdhury, against an order dated the 17th November, 1969 passed by Sri S. C. Talukdar, Chief Presidency Magistrate, Calcutta in case No. M/1103 of 1968 under Section 488 of the Code of Criminal Procedure, rejecting the petitioner's prayer for setting aside an ex parte order dated the 21st April, 1969, passed by the learned Chief Presidency Magistrate, Calcutta directing him to pay Rs. 300/- per month as maintenance to the 1st party-opposite party, Sm. Archana Chowdhury, and also a further order dated the 15th December, 1969 passed by the learned Chief Presidency Magistrate Calcutta directing the issue of a distress-warrant against the petitioner.
( 2 ) THE facts leading on to the Rule are short and simple. The first party Sm. Archana Chowdhury filed on 12-11-68 an application under Section 488 of the Code of Criminal Procedure in the court of the Chief Presidency Magistrate, Calcutta against the second party, Hemendra Nath Chowdhury, claiming a maintenance of Rs. 350/- per month. It was stated therein inter alia that the first party is the legally married wife of the second party, and their marriage was registered under Act XLIII of 1954 on 27-4-68, and subsequently solemnised also according to Hindu rites; that after the marriage they lived together as husband and wife uptil 14-9-68 in a house at 1, Deshapriya Park (East), Calcutta; that the second party who has no other dependant is employed under M/s. India Steamship Co. , of 21, Old Court House Street, Calcutta drawing a pay of Rs. 900/- per month; that all on a sudden the second party left the Deshapriya Park residence on 14-9-68 without any previous intimation and the first party came to know that he had left for Bombay to board a ship therefrom; that the first party was in great difficulties and on 31-10-68 when the second party's ship returned to Calcutta, she and the other members of her family went to the ship to receive him, but the second party who appeared to be indifferent gave out that he will not keep any further connection with her; that the second party in spite of having sufficient means has been neglecting and refusing to maintain the first party who is forced to live with her mother at 4/1, Rajendra Lala Street, Calcutta; and that accordingly she claimed for maintenance. The address of the second party was given as 21. Old Court House Street, Calcutta, C/o. India Steamship Co. Ltd. The case thereafter had a chequered history. On the 12th December, 1968, the notice on the second party returned unserved and the report of the process-server stated that the person concerned could not be found there as he was serving on board the steamship owned by the company. The learned Chief Presidency Magistrate, Calcutta, thereupon by his order of the same date directed fresh notice to be issued for being served on the identification by the first party. 13-2-69 was fixed as the next date. On the 7th February, 1969, as the process-server's report shows, he served the summons by posting the same in presence of two witnesses at 21, Old Court House Street, Calcutta which is the office of M/s. India Steamship Co. Ltd. The report stated that it was duly served by the process-server. The learned Chief Presidency Magistrate, Calcutta, considered the said service to be good and by his order dated the 13th February, 1969 observed that "notice on the O. P. served by affixture. O. P. is absent. To 3-4-69 for hearing". On 3-4-69 the second party was absent and it was directed by the Court that as none appears for him or any cause is shown on his behalf an ex parte hearing is to start. Thereafter one P. W. was examined. On 12-4-69, the next date, the first party who was present was examined and 16-4-69 was fixed for arguments. On that date the first party was further examined and arguments were heard and 21-4-69 was fixed for judgment. On 21-4-69 an ex parte order was passed by the learned
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