Saturday, February 14, 2015

Exparte intrm us 125CrPC to be modified & even CANCELLED on applicatn by husband.Cal HC & Suprm Court

Exparte interim u/s 125CrPC to be modified or even CANCELLED on application by husband. Calcutta HC & Supreme Court

 

Earlier we had blogged that an Ex parte order for maintenance u/s 125 CrPC could be set aside by the Hon HC IF husband was not allowed to defend, to lead evidence!! This was blogged here http://bit.ly/1EcWp4f and here http://bit.ly/1DbJlPo


Now we have this further HC order stating that an exparte orders could be amended or even cancelled by the magistrate on application by the husband


The Hon Cal HC states quoting the Supreme court that : "....Therefore, even if an ex parte order of interim maintenance is passed, the learned Magistrate on prayer of the husband after his appearance is required to reconsider the matter of interim maintenance and pass necessary order either confirming the interim maintenance or modifying or even cancelling the same if the circumstances so require...."

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name).  Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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Calcutta High Court

Paritosh Das vs Kalyani Das And Ors. on 9 February, 1993

Equivalent citations: (1993) 1 CALLT 416 HC, I (1994) DMC 243

Author: G Bhattacharjee

Bench: G Bhattacharjee

JUDGMENT G.R. Bhattacharjee, J.

 

1. It appears that the learned Magistrate in a proceeding under Section 125 Cr. P.C. passed an ex parte order of interim maintenance awarding Rs. 150/- per month for the wife and Rs. 75/- each for the two children on 9.5.92. Thereafter the husband appeared and made an application before the learned Magistrate for reconsideration of the order of interim maintenance passed by him. The learned Magistrate by his impugned order dated 24.8.92, it appears, virtually refused to reconsider his order on the ground that fee passed the said order ex parte. That does not seem to be a correct approach. The Supreme Court in Sm. Sabitri v. Gobinda Singh, 1986 Cr. LJ 41 has inter alia observed at page 43 that an order of interim maintenance may be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. Therefore, even if an ex parte order of interim maintenance is passed, the learned Magistrate on prayer of the husband after his appearance is required to reconsider the matter of interim maintenance and pass necessary order either confirming the interim maintenance or modifying or even cancelling the same if the circumstances so require. The learned Magistrate is, accordingly, directed to consider the application of the husband for reconsideration of the order of interim maintenance. It is desirable that the learned Magistrate will dispose of the application of the husband for reconsideration of the order of interim maintenance within a period of one month from the date of communication of this order. This revisional application is disposed of accordingly. http://evinayak.tumblr.com/  ; http://vinayak.wordpress.com/  ; http://fromvinayak.blogspot.com

 

2. The learned Advocates for both sides are granted the liberty to communicate this order to the learned Magistrate.

 

3. Filing of affidavit-of-service is dispensed with as the other side has appeared.

 

4. Let xerox copies of this order be given to the learned Advocates for the parties on usual terms.

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PDF uploaded to http://1drv.ms/1KZ18IQ

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist