Paritosh Das vs Kalyani Das and Others

G.R. Bhattacharjee, J.—It appears that the learned Magistrate in a proceeding u/s 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 Savitri Rawat Vs. Govind Singh Rawat, 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.

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

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

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