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2001 DIGILAW 684 (CAL)

Ramchandra Pal v. Jolly Paul

2001-10-18

Debiprasad Sengupta

body2001
JUDGMENT D. P. Sengupta, J.: The present revisional application has been directed against an order dated 25.8.2000 passed by the learned Judicial Magistrate, 6th Court, Howrah in Misc. Execution Case No. 103 of 2000. The present opposite party No.1 filed an application for maintenance under section 125 Cr.P.C. against her husband @ Rs. 1500/- per month. The O.P. No.1 also filed an application for interim maintenance from her husband during pendency of the proceeding under section 125 Cr.P.C. On such application interim maintenance was granted at the rate of Rs. 500/- per month. Thereafter the original proceeding under section 125 Cr. P.C. was finally disposed of by the learned Magistrate, who by an order dated 23.3.98 dismissed the said application under section 125 Cr.P.C. The opposite party No.1 thereafter preferred a revisional application before the learned 'Sessions Judge challenging the order passed by the learned Magistrate. The learned Sessions Judge by his order dated 25.8.99 dismissed the revisional application and affirmed the order passed by the learned Magistrate. 2. The present O.P. No.1/wife thereafter preferred a revisional application before the court being C.R.R. No. 2243 of 1999. The revisional application was allowed by this court by an order dated 15.3.2000. This court remanded the matter back to the learned Magistrate with a direction to consider the matter afresh on the basis of the evidence already on record. This court further directed the present petitioner/husband to pay Rs. 1500 per month to the opposite party/wife as interim maintenance till the proceeding under section 125 Cr.P.C. is concluded by the learned Magistrate as per direction of this court. The present opposite party No.1 thereafter filed an application before the learned Magistrate under section 125(3) of the Code of Criminal Procedure thereby claiming a sum of Rs. 68,500/- from the present petitioner an such application an execution proceeding was initiated which was numbered as Misc. Execution Case No. 103 of 2000. Thereafter the present O.P. No.1 filed a further petition in the said Misc. Execution Case claiming arrear maintenance with effect from 2.12.1995, i.e., from the date of filing original application under section 125 Cr.P.C. The learned Judicial Magistrate, 6th Court, Howrah by his order dated 25.8.2000 held that in view of the judgement and order dated 15.3.2000 passed by this court in C.R.R. No. 2243 of 1999 the petitioner/husband was liable to pay maintenance allowance of Rs. 68,500/- as prayed for by the wife and fixed 26.9.2000 as the date fixed for payment. Challenging such order passed by the learned Magistrate the petitioner/husband has come up before this court in revision. 3. Now, the only point which is to be decided by this court is whether the O.P. No.1/wife is entitled to interim maintenance at the rate of Rs. 1500/- per month from the date of filing of application under section 125 Cr.P.C. in view of the judgement and order dated 15.3.2000 passed by this court, or such interim maintenance is to be paid by the husband! petitioner from the date of the order passed by this Court, i.e. from 15.3.2000. 4. Mr. Joy Sengupta, learned Advocate appearing for the petitioner draws the attention of the court to the judgement and order passed by this court in C.R.R. No. 2243 of 1999. The last paragraph of the said judgement runs as follows :- "I accordingly set aside the order of the learned Magistrate as also the order of affirmation passed by the learned Additional Sessions Judge and set the clock back of Misc. Case No. 281 of 1995 to the period of time when the petitioner had first stepped into the Court of the learned S.D.J.M., Howrah with a petition for maintenance. I remand the matter back to the learned Magistrate, who will, on remand, consider the case afresh on the basis of the evidence already on record and arrive at his just decision in accordance with law. Pending conclusion of the proceeding to wipe out the tears from the eyes of the unfortunate petitioner and to provide her some morsel of food and allow her to taste the fruit of the final decision I direct that she will be entitled to receive an amount of Rs. 1,500/- as interim maintenance from the opposite party month by month until the proceeding is concluded. The revisional application is accordingly allowed." 5. Referring to the aforesaid judgement of this court it is submitted by Mr. Sengupta that this court never indicated in the said judgement that interim maintenance @ Rs. 1500/- per month was to be paid from the date of filing of application under section 125 Cr.P.C. This court directed, while sending the matter back on remand to the ld. Magistrate with a direction to consider the matter afresh, the husband/petitioner to pay interim maintenance @ Rs. 1500/- per month was to be paid from the date of filing of application under section 125 Cr.P.C. This court directed, while sending the matter back on remand to the ld. Magistrate with a direction to consider the matter afresh, the husband/petitioner to pay interim maintenance @ Rs. 1500/ - to the wife till the disposal of the proceeding. The opposite party No.1, appearing in person, submits that when this court remanded the matter back to the learned Magistrate and directed the petitioner/ husband to pay interim maintenance @ Rs. 1500/- per month, such interim maintenance should be paid from the date of filing of the application. It is her submission that the learned Magistrate was justified in allowing her prayer for realisation of such interim maintenane @ Rs. 1500/- from the date of filing of the application under section 125 Cr.P.C. The learned Advocate of the petitioner/husband submits that in compliance with the order passed by this court on 15.3.2000 the petitioner has been paying interim maintenance to the O.P./wife with effect from the date of the order passed by this Court, i.e., 15.3.2000. The opposite party No.1 also admits the position and submits that she has been receiving such amount of interim maintenance. 6. I have heard the learned Advocate of the petitioner as also the O.P. No.1, who appeared in person. I have also perused the earlier order passed by this Court on 15.3.2000. It is clear from the record that application for maintenance was filed in 1995. Prayer for interim maintenance was allowed on 3.4.96 and the petitioner was directed to pay Rs. 500/- per month as interim maintenance. The petitioner/husband admittedly continued to pay such interim maintenance @ Rs. 500/- till the final disposal of the proceeding under section 125 Cr.P.C. The proceeding under section 125 Cr.P.C. was finally disposed of on 23.3.98, when the learned Magistrate refused the prayer for maintenance and dismissed the application under section 125 Cr.P.C. So, the order of interim maintenance at the rate of Rs. 500/- came to an end with the final disposal of the proceeding under section 125 Cr.P.C. Thereafter revisional application was preferred before the learned Sessions Judge, which was also dismissed. So, on and from 23.3.98 the husband/petitioner was under no obligation to pay any maintenance to the O.P./wife. 500/- came to an end with the final disposal of the proceeding under section 125 Cr.P.C. Thereafter revisional application was preferred before the learned Sessions Judge, which was also dismissed. So, on and from 23.3.98 the husband/petitioner was under no obligation to pay any maintenance to the O.P./wife. Thereafter the revisional application was preferred before this court, which was finally disposed of by this court on 15.3.2000. This court by the judgement and order dated 15.3.2000 remanded the matter back to the learned Magistrate to consider the matter afresh. This court also directed the husband/petitioner to pay interim maintenance @ Rs. 1500/- per month till the proceeding is concluded by the learned Magistrate. From a reading of the judgement passed by this court it becomes clear that this Court after sending back the matter to the learned Magistrate directed the husband to pay interim maintenance from the date of passing of such judgement. It was never directed by this court that the petitioner should pay such interim maintenance @ Rs. 1500/- from the date of filing of application under section 125 Cr.P.C. 7. In view of the discussion made above I am of the view that the opposite party No. 1/ wife is entitled to get interim maintenance @ Rs. 1500/- per month from the date of the judgement and order passed by this court as it has already been directed by this court. The present revisional application is accordingly allowed and the impugned order dated 25.8.2000 passed by the learned Magistrate is set aside. The husband/petitioner is directed to pay interim maintenance @ Rs. 1500/- per month to the O.P./wife with effect from the judgement and order passed by this court. I also direct the learned Magistrate to proceed with the matter and conclude the same with utmost expedition. Revisional application allowed.