Debanshu Bardhan vs Susmita Sarkar
2022 Latest Caselaw 3894 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Revisional Jurisdiction
                                   Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri

                               CRR 1817 of 2022

                               Debanshu Bardhan
                                      Vs.
                                Susmita Sarkar

For the petitioner        :        Mr. Dipanjan Dutt, Adv.,
                                   Mr. Kausik Dey, Adv.,
                                   Ms. Mohini Majumder, Adv.,
                                   Mr. Raghav Munshi, Adv.

For the State              :       Ms. Puspita Saha, Adv.

Heard &
Judgement on               :       01.07.2022.

Bibek Chaudhuri, J.

Petitioner is given liberty to correct the cause title.

Judgment and order dated 2nd March, 2021 passed by the

Learned Additional Sessions Judge, Fast Track, 4th Court at

Barrrackpore in Criminal Revision No. 405/2019 thereby enhancing

the quantum of maintenance allowance from Rs.10,000/- to

Rs.40,000/- is under challenge by the petitioner.

It is contended by the petitioner that the opposite party was

legally married wife of the petitioner. Subsequently, due to marital

discord a suit for divorce was initiated and marriage was dissolved by

a competent Civil Court by passing a decree for divorce. The opposite

party is no longer the married wife of the petitioner. After the decree

of divorce being passed, the petitioner has married for the second

time. In the said wedlock, the second wife of the petitioner gave birth

to two daughters. At this stage, the first divorced wife of the

petitioner filed an application under Section 125 of the Code of

Criminal Procedure praying for maintenance allowance from the

petitioner.

Trial Court passed an order of maintenance at the rate of

Rs.10,000/- per month. The said order was challenged by the

opposite party with a prayer for enhancement of quantum of

maintenance in Criminal Revision No. 405/2019. The Learned

Revisional Court by its judgement dated 2nd March, 2021 enhanced

maintenance from Rs.10,000/- to Rs. 40,000/-. The petitioner has

challenged the said order. It is submitted by the petitioner that the

petitioner has not received any notice of the revision from the

revisional Court. However, the Learned revisional Court held that

notice was served upon the petitioner taking presumption of Section

27 of the General Clauses Act and proceeded with the matter and

directed the petitioner to pay maintenance at the rate of Rs.40,000/-

per month.

Mr. Dutt submits before me that the petitioner did not get an

opportunity to contest the revisional application as well as the

maintenance proceeding before the Court of the Learned magistrate

all through ex parte order was passed. The petitioner also did not

receive any notice of the revisional proceeding which is apparent from

the postal track report that the notice of the revisional proceeding was

returned with postal endorsement 'insufficient address'.

Considering the entire facts and circumstances of the case, this

Court is of the view that the instant matter can be disposed of here

and now.

Ms. Puspita Saha, Learned Public Prosecutor-in-Charge is

requested to assist this Court. Appointment of Ms. Puspita Saha be

regularized. The petitioner is directed to serve a copy of the

application to the Learned Advocate for the State.

It is not in dispute that the revisional application was disposed

of ex parte. This Court is not unmindful to note that even a divorced

wife who has not married for the second time is entitled to get

maintenance from his ex-husband. However, the petitioner had right

to challenge the finding as regards quantum of maintenance.

In view of such circumstances, the impugned order dated 2 nd

March, 2021 passed by the Learned Additional Sessions Judge, Fast

Track, 4th Court at Barrackpore is set aside. Since the petitioner has

appeared before this Court no notice is required to be served by the

opposite party to the petitioner. The petitioner is directed to appear

before the Learned revisional Court within a fortnight. The Learned

revisional Court is directed to rehear Criminal Revisional No.

405/2019 and after providing audience to the petitioner the revisional

application being No. 405/2019 is directed to be disposed of. With

the above order, the instant criminal revision is disposed of.

There shall be no order as to costs.

(Bibek Chaudhuri, J.)

Srimanta, A.R.(Ct.)