28.09.2026 Serial no. 08 [Srimanta] Ct. No. - 39 IA No.: CRAN/1/2023 in CRR/2501/2023 In re : An Application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 -And- In the matter of : NEHA AHMED … … Petitioner. 1. None appears on behalf of either of the parties on call. 2. No accommodation is sought for. Even on earlier occasions, none represented the petitioner nor was any accommodation sought for. 3. This case is pending since 2023. 4. Considering the long pendency and nature of prayer, this Court prefers to adjudicate this case on merits based on materials available on record. 5. By filing this revisional application, the petitioner being the wife of the opposite party no. 1, assailed the order dated 24.01.2023 passed by the learned Sessions Judge, 18th Court, Alipore, South 24-Parganas in Criminal Appeal No. 41/2018. 6. By the said impugned order, the learned session judge set aside the order of ex parte hearing and order passed by the trial court in connection with C. Case No. 2 716 of 2016 under Section 12 of PWDV Act and allowed opposite party no.1 to contest the case afresh by giving the opportunity to appear and contest the case. 7. The brief fact of the case is that the petitioner had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short, PWDV Act, 2005) being No. C-716/2016. The application was decided ex parte on 09.12.2016, thereby directing the opposite party herein to make payment of Rs. 50,000/- per month to the petitioner and Rs. 50,000/- to their minor child, as maintenance allowance based on willful non-appearance of the opposite party. 8. In the appeal filed by the opposite party no. 1, the learned Additional Sessions Judge set aside the order passed by the learned Judicial Magistrate dated 09.12.2016 in an application under Section 12 of the PWDV Act, 2005 and directed the Trial Court to decide the same on merits by giving an opportunity to the opposite party no. 1, holding therein that he did not contest the case as he did not get any opportunity to contest. He never received any summons from the Trial Court since he was residing in Bengaluru. No notice was served upon him. Even for the sake of argument, if the trial court presumed that summons 3 was served upon the opposite party no.1, a second opportunity ought to have been given to him. 9. Being aggrieved by and dissatisfied with the order passed by the Additional Sessions Judge, the present revisional application has been filed by the petitioner seeking setting aside of the said impugned order, as he did not contest the case despite good service, and such ex parte order has been passed. 10. Having gone through the judgment passed by the learned Sessions Judge as well as materials available on the case record, this Court finds that the Sessions Judge has rightly passed the order without committing any error, illegality and/or suffering from impropriety; the judgment passed by the learned Sessions Judge is well reasoned. 11. It was not that she is not getting maintenance from the opposite party no. 1 in view of order dated 08.06.2017 in an application filed under Section 125 of the CrPC. The said application was disposed of by the learned Chief Judicial Magistrate, Alipore by passing a final order of maintenance to the tune of Rs.40,000/- as maintenance for the petitioner and their children on 08.06.2017. 12. It is the settled law that if it is not proved that the summons was duly served, the Court shall direct a 4 second summon or alternative mode of service of summon to be issued upon the opposite party no.1. If it is proved that the summons was duly served upon the opposite party no.1, the Court may proceed ex parte. The summon does not say that on failure to appear, the plaintiff is entitled to a judgment by default, but on the failure of the Opposite party no.1 to appear, the case will be heard and determined ex parte, i.e. in his absence by the taking of evidence, but in the present case the opposite party no.1 was residing in Bengaluru and summon was not properly served. Therefore, an ex parte decree on the ground of non-service of summons would not be maintainable. 13. Upon overall consideration of the case, this Court also finds that an opportunity should be given to the opposite party no. 1 to contest the proceeding filed under Section 12 of the PWDV Act. In the above facts and circumstances, the reason assigned by the Sessions Judge is found correct. Consequently, this Revisional application fails. 14. Accordingly, CRR/2501/2023 is dismissed. Consequently, CRAN/1/2023 is also disposed of. 15. Interim order, if any, stands vacated. 16. However, it is made clear that this Court has not entered into the merits of the case pending under 5 Section 12 of the PWDV Act. The Trial Court shall decide the same independently and in accordance with law as expeditiously as possible, if not already disposed of, without granting any unnecessary adjournment to the parties and without being influence of any observations, whatsoever, made by this Court. 17. Let a copy of this order be communicated to the learned Court below for information. 18. All parties are to act on the server copy of this judgment duly downloaded from the official website of the Calcutta High Court. 19. Urgent xerox certified copy, if applied for by the parties, same shall be supplied upon compliance of the necessary formalities. (Ajay Kumar Gupta, J.)