Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors. - Court Judgment

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
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			'decidedon' => '1996-11-20',
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			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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Code Context
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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
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		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Code Context
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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
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			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
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			'favorof' => null,
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			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
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			'decidedon' => '1996-11-20',
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			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
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		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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Dipak Misra, J.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
	'args' => array(
		(int) 0 => '529889',
		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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)
$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = ' and Smt. Sulochana Sahu v. Baman Ch. Sahu<br>'
$content = array(
	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
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			'circuit' => null
		)
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	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.

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Code Context
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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
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			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
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	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
	'args' => array(
		(int) 0 => '529889',
		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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$content = array(
	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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$cnt = (int) 23
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'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.'

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
	'args' => array(
		(int) 0 => '529889',
		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
	'args' => array(
		(int) 0 => '529889',
		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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)
$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = ' and Smt. Sulochana Sahu v. Baman Ch. Sahu<br>'
$content = array(
	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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$cnt = (int) 23
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'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.'

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
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			'circuit' => null
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.'

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
	'args' => array(
		(int) 0 => '529889',
		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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On 21.7.1994, the learned Magistrate passed the order to the following effect:

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
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		'counselplain' => 'R.K. Nayak, Adv.',
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		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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'Heard arguments from both sides. Put up on 25.7.1994 for judgment.'

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
	'args' => array(
		(int) 0 => '529889',
		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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$content = array(
	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
	'args' => array(
		(int) 0 => '529889',
		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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)
$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
	)
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$caseref = ' and Smt. Sulochana Sahu v. Baman Ch. Sahu<br>'
$content = array(
	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.'

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
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	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
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		(int) 1 => 'ashwani-kumar-chatterjee-vs-jhostchnarani'
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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$content = array(
	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
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11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
		'ratiodecidendi' => '',
		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
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12. The Criminal Revision is accordingly disposed of.

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	'title_for_layout' => 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529889',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
			'appealno' => 'Criminal Revision No. 41 of 1995',
			'appellant' => 'Ashwani Kumar Chatterjee',
			'authreffered' => '',
			'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
			'caseanalysis' => null,
			'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
			'citingcases' => '',
			'counselplain' => 'R.K. Nayak, Adv.',
			'counseldef' => 'Pradipta Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1996-11-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dipak Misra, J.',
			'judgement' => '<p style="text-align: justify;">Dipak Misra, J.</p><p style="text-align: justify;">1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p style="text-align: justify;">2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p style="text-align: justify;">3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p style="text-align: justify;">4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p style="text-align: justify;">5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p style="text-align: justify;">6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p style="text-align: justify;">7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p style="text-align: justify;">'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p style="text-align: justify;">On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p style="text-align: justify;">'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p style="text-align: justify;">The progress of the proceeding on the next date is reflected as under :</p><p style="text-align: justify;">'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p style="text-align: justify;">On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p style="text-align: justify;">'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p style="text-align: justify;">8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p style="text-align: justify;">9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p style="text-align: justify;">'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p style="text-align: justify;">This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p style="text-align: justify;">10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p style="text-align: justify;">11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p style="text-align: justify;">12. The Criminal Revision is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1997(1)ALT(Cri)19; 1997CriLJ3253; I(1997)DMC476',
			'ratiodecidendi' => '',
			'respondent' => 'Jhostchnarani Chatterjee and ors.',
			'sub' => 'Family;Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'ashwani-kumar-chatterjee-vs-jhostchnarani',
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$title_for_layout = 'Ashwani Kumar Chatterjee Vs Jhostchnarani Chatterjee and ors - Citation 529889 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '529889',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 125',
		'appealno' => 'Criminal Revision No. 41 of 1995',
		'appellant' => 'Ashwani Kumar Chatterjee',
		'authreffered' => '',
		'casename' => 'Ashwani Kumar Chatterjee Vs. Jhostchnarani Chatterjee and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
		'caseanalysis' => null,
		'casesref' => ' and Smt. Sulochana Sahu v. Baman Ch. Sahu;',
		'citingcases' => '',
		'counselplain' => 'R.K. Nayak, Adv.',
		'counseldef' => 'Pradipta Mohanty, Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1996-11-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dipak Misra, J.',
		'judgement' => '<p>Dipak Misra, J.</p><p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.</p><p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.</p><p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.</p><p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.</p><p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.</p><p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.</p><p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :</p><p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' </p><p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :</p><p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' </p><p>The progress of the proceeding on the next date is reflected as under :</p><p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' </p><p>On 21.7.1994, the learned Magistrate passed the order to the following effect:</p><p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' </p><p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.</p><p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :</p><p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' </p><p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.</p><p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.</p><p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.</p><p>12. The Criminal Revision is accordingly disposed of.<p></p><p>',
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		'respondent' => 'Jhostchnarani Chatterjee and ors.',
		'sub' => 'Family;Criminal',
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	(int) 0 => '<p>Dipak Misra, J.',
	(int) 1 => '<p>1. Grant of maintenance to the wife and the children in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by the Subdivisional Judicial Magistrate, Puri in Criminal Misc. Case No. 335 of 1993 is the subject matter of challenge in the present revision.',
	(int) 2 => '<p>2. The factual matrix as unfolded is that the opposite party No. 1, the wife of the present petitioner, along with three daughters, opposite parties 2 to 4 herein filed an application under Section 125 of the Code claiming maintenance of Rs. 500/- for herself and Rs. 200/- for each of the children per month. According to the wife-opposite party No. 1, her marriage with the present petitioner was solemnised on 9.7.1972 and three daughters and one son were born in their wedlock. The husband who has been working as a 'Bill Issuer' in Utkal Express has developed illicit relationship with his sister-in-law (wife's sister) and she objected to the same and requested him to mend his ways and amend his character. He did not pay any heed and left the house with the son in the month of February, 1993 abandoning the wife and children to suffer their own joss. It has also been asserted by her that while she had protested in regard to the illicit relationship of her husband with her sister she was brutally assaulted and deprived of food. The further case of the wife-opposite party is that she has been neglected and treated with intolerable cruelty and is not in a position to sustain herself and her daughters. It has also been asserted by her that the salary of the husband is Rs. 3,500/-and it is his duty to maintain the wife and daughters.',
	(int) 3 => '<p>3. The allegations of the wife-opposite party No. 1 herein were seriously refuted by the husband-petitioner stating, inter alia, that the wife is staying with a person named B.C. Sahu in a rented house along with her three daughters, and in spite of repeated requests she has not discontinued her relationship with the said B.C. Sahu and has not accepted the offer of the husband to come back to him along with the daughters to live in an atmosphere of amity and understanding. Thus, while making counter allegations of adultery against the wife, the husband has disputed all other allegations and controverted the claim of maintenance as advanced by her.',
	(int) 4 => '<p>4. After the written statement was filed the case was adjourned from time to time and ultimately it was posted to 6.6.1994 for hearing on which day an application for adjournment was filed by the husband. The Court below allowed the prayer for adjournment and fixed the matter to 16.7.1994. On that day the husband-opposite party did not take any steps and the Court adjourned the proceeding to 20th July, 1994 for further orders. On the adjourned date the husband remained absent. Evidence was adduced on behalf of the wife and the matter was fixed to 21.7.1994 for argument, and ultimately final order was passed on 25.7.1994 granting maintenance as indicated earlier on.',
	(int) 5 => '<p>5. Mr. R.K.Nayak, the learned Counsel for the petitioner has contended that the husband has not been given adequate opportunity to contest the proceeding and, therefore, the order passed by the Court below is susceptible. He has referred to the order-sheet to show that the learned Magistrate has committed gross illegality by recording on 21.7.1974 that he heard arguments from both the sides though me petitioner was absent on that day Serious exception has been taken to this by the Counsel for the petitioner and a prayer has been made to set aside the entire impugned order and for issuance of a direction to hear the matter afresh granting adequate opportunity to the petitioner. Apart from this, the order also has been challenged on the merits by advancing the submission to the effect that the reasonings given by the Court below are absolutely unjustified and the determination of quantum of maintenance is extremely excessive. Mr. Nayak has also highlighted that when the husband had expressed his willingness to take back the wife and the children exonerating her shortcomings the learned Sub-divisional Judicial Magistrate should not have hurried through the proceeding and should have taken effective steps for reconciliation.',
	(int) 6 => '<p>6. Mr.P. Mohanty, learned Counsel appearing for the wife-opposite party has refuted the submissions raised by the learned Counsel for the petitioner. He has contended that mere recording of 'heard both sides would not entitle the petitioner for vacation of the order passed by the Court below. He has strenuously canvassed that the allegations in the written statement are glaring manifestations of cruelty, and the concentrated effort of the petitioner is to avoid his responsibility to maintain his wife and the daughters. It is also vehemently urged by the learned Counsel for me opposite party that the offer of the husband-petitioner to take back his wife and children is a perverse exhibition of the propensity of pretence.',
	(int) 7 => '<p>7. To appreciate the rival submissions advanced by the learned Counsel for parties, I have carefully gone through the order sheet. The learned Subdivisional judicial Magistrate passed the following order on 6.6.1994 :',
	(int) 8 => '<p>'Petitioner is present. Opposite party filed a petition for time for hearing? Prayer for time is allowed till 16.7.1994 for hearing.' ',
	(int) 9 => '<p>On 16.7.1994, the learned Subdivisional Judicial Magistrate recorded as follows :',
	(int) 10 => '<p>'Petitioner is present. Opposite party is absent on calls and no steps. Put up on 20.7.1994 for further orders.' ',
	(int) 11 => '<p>The progress of the proceeding on the next date is reflected as under :',
	(int) 12 => '<p>'20.7.1994 : Petitioner is present, opposite party is absent on calls. Evidence closed. Put up on 21.7.1994 for arguments.' ',
	(int) 13 => '<p>On 21.7.1994, the learned Magistrate passed the order to the following effect:',
	(int) 14 => '<p>'Heard arguments from both sides. Put up on 25.7.1994 for judgment.' ',
	(int) 15 => '<p>8. The moot question that arises whether the husband-petitioner should be granted another opportunity to contest the matter. Before dealing with that aspect, it is essential to find out the real essence of adjudication made before the learned Magistrate. On perusal of the entire order-sheet, I notice that on 18.1.1994 the husband filed an application praying for time to file his written statement. Matter stood adjourned to 5.2.1994 on which day, objection was filed by the opposite party therein. Matter could not proceed due to certain difficulties and it was taken upon 5.4.1994. On that day an application was filed by the petitioner for grant of interim maintenance. Matter was adjourned to 15.4.1994 for objection and hearing. Objection was filed on 15.4.1994 and on that day petitioner was examined and discharged and matter was adjourned to 23.4.1994. Thereafter, after number of adjournments the matter was fixed to 6.6.1994. What happened thereafter has already been indicated above by referring to the orders passed thereafter. It is apparent that what the learned Magistrate was really considering was the issue of grant of interim maintenance. While doing as he found the husband was absent but he disposed of the main application. A husband has the duty to maintain his wife and the children are to be looked after by him. It is his pious duty. A wife has to be treated with-dignity. Due status and position is to be given as she deserve the same. But wild allegations of adultery, if made, are to be proved. In the case in hand, there are allegations and counter allegations. Indisputably, the husband has remained absent on 15.7.1994 and 20.7.1994. The Magistrate has recorded erroneously that he had heard both sides. Such erroneous recording ipso facto, does not vitiate the order but what really comes under scrutiny is that the case was to be taken up for the purpose of grant of interim maintenance. If the husband chose not to contest and remained absent, the Magistrate was within his jurisdiction to grant interim maintenance. But ignoring his earlier orders in the proceeding, the learned Magistrate has disposed of the matter finally. This cannot stand scrutiny.',
	(int) 16 => '<p>9. It is well settled in law, the Court while dealing with an application under Section 125 of me Code of Criminal Procedure can grant interim maintenance. In the case of Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984, the Apex Court has held as follows :',
	(int) 17 => '<p>'......In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.' ',
	(int) 18 => '<p>This Court in the cases of Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 O.C.R. 687, Madhab v. Minamani Das and Ors., 1989(2) O.C.R. 84, and Smt. Sulochana Sahu v. Baman Ch. Sahu, 1986(1) O.L.R. 558, has also ruled in favour of permissibility of grant of interim maintenance. As the grant of interim maintenance for permissible in law, the learned Magistrate could have dealt with the same accordance with law but should not have disposed of the entire case finally. Because of file final disposal of the case, no doubt, the husband petitioner has not been given proper opportunity. This is against the concept of fair play.',
	(int) 19 => '<p>10. While perusing the impugned order, I find that the learned Magistrate has in effect proceeded ex-parte. The husband petitioner could have moved the learned Magistrate to set aside the ex-parte order invoking the statutory jurisdiction vested in him. In stead of doing so, he has approached this Court. Final disposal by the impugned order is not appreciated. It has to be regarded as an order granting interim maintenance. The husband petitioner chose to remain absent while the application for interim maintenance was being heard. True, it is, the learned Magistrate has not recorded his satisfaction while proceeding ex-parte but if it is construed as an interim order the same is not necessary because the husband would have the opportunity to contest when the matter is taken up for final hearing. Though the prayer is for setting aside the impugned order, I am of the considered view, the same is not necessary as I am inclined to hold in the facts and circumstances of the case that the said order is in effect an order granting interim maintenance. However, 1 am inclined to modify the directions given in the order so that it is denuded of its finality. The quantum fixed in the said order to be paid by the husband petitionerislimitedtoRs.10/000/-. The grant of arrears from the date of application shall be considered at the stage of final add dication.',
	(int) 20 => '<p>11. Resultantly, the impugned order is modified to the extent indicated above and the parties are directed to appear before the learned Subdivisional Judicial Magistrate, Puri on 15th of December, 1996 to take further instructions. As the matter is pending since long the learned Magistrate would do well to dispose of the matter finally by end of February, 1997. The sum fixed by this Court is to be paid by 15th of December, 1996, failing which it would be open to the learned Magistrate to proceed ex-parte against the husband petitioner.',
	(int) 21 => '<p>12. The Criminal Revision is accordingly disposed of.<p>',
	(int) 22 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 23
$i = (int) 22
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