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2002 DIGILAW 381 (CAL)

Sukanta Ghosh v. Santana Ghosh

2002-06-14

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against an order dated 12th May, 2000 passed by the learned Judicial Magistrate, 6th Court, Sealdah in Case No. M-3 of 1999 thereby dismissing a petition of the husband opposite party dated 15th March, 2000. By this petition the husband opposite party prayed for an order dismissing a petition of the wife dated 10th September, 1999 praying for enhancement of the amount of maintenance which she was getting so long by virtue of an earlier order of that Court dated 27th May, 1997. While the petitioner wife was enjoying that amount as maintenance, the husband filed a divorce suit and succeeded in getting a decree. Thereafter, the wife preferred an appeal which is pending before this Hon'ble Court and during its pendency the wife made a petition therein praying for enhancement of alimony which she was getting by virtue of the order of the learned Court below, i.e., the learned Additional District Judge's order dated 19th December, 1995. 2. The Divisional Bench before which this prayer was moved was pleased to allow that prayer for enhancement and in its order dated 27th January, 2000 it enhanced the amount after taking into consideration the increase in the market price of all essential commodities and also the amount of maintenance the wife was getting by virtue of an order of the criminal court under section 125 of the Cr.P.C. to the extent of Rs. 150/- per month. The Division Bench made it clear that the amount enhanced totaling Rs. 800/- per month would include also the said amount of maintenance which was being received by the wife by virtue of the order of the learned Magistrate. 3. In view of such an order the opposite party husband filed the petition in question before the Court of the learned Magistrate praying for an order dismissing the petition for enhancement already filed by the wife before it, which was still pending, on the ground that in view of the order of the Division Bench of this Court the petition was no longer maintainable. The learned Magistrate after hearing both sides rejected that petition and being aggrieved thereby the opposite party husband has preferred the present revisional application challenging the said order as erroneous and illegal. 4. Mr. The learned Magistrate after hearing both sides rejected that petition and being aggrieved thereby the opposite party husband has preferred the present revisional application challenging the said order as erroneous and illegal. 4. Mr. Sau, learned advocate appearing on behalf of the petitioner, submits that in view of the clear order of the Division Bench of this Court which was passed by it after taking into account the amount which the wife had been getting by virtue of the order of the criminal court, she cannot make a prayer for further enhancement and the petition including such a prayer which is now pending before the court of the learned Magistrate, therefore, becomes untenable in the eye of law and should be dismissed in limini. His further contention is that two applications of same nature - one for alimony under section 24 of the Hindu Marriage Act and another for maintenance under section 125 of the Criminal Procedure Code - cannot go together and one having been allowed the other must fail. In support of his contentions he referred to two rulings one of the Apex Court and another of this court. In the former one, it has been held by a Division Bench of the Supreme Court reported in A.I.R. 1999 S.C. 536 that maintenance amount and interim alimony amount awarded under section 125 of the Criminal Procedure Code is adjustable against the amount awarded in matrimonial proceeding under section 24 of the Hindu Marriage Act as alimony to the wife. Nobody disputes this legal position. This legal principle has been valid since long before this judgment of the Apex Court was pronounced. The question which has been raised in the present case is not covered by this ruling. Here we are confronted with the point whether in view of an order passed by the High Court enhancing the amount of maintenance or, for that matter, alimony and while making such enhancement it has considered the amount which the wife was getting by way of maintenance under section 125 of the Cr.P.C., whether a petition for enhancement filed before the court of the learned Magistrate again becomes not maintainable in the eye of law, in view of such order having been passed by the High Court. In the ruling cited by Mr. Sau, this question has not been answered. In the ruling cited by Mr. Sau, this question has not been answered. On the other hand, this ruling stands in the way of what is being argued by Mr. Sau. The verdict of the Apex Court in this judgment shows that two orders by two different courts - one civil and another criminal - is possible and permissible simultaneously but what should be done is adjustment. When it is found that a petition before one court has been allowed, then care should be taken to ensure that the husband is not compelled to pay such amount twice and, therefore, if another order is passed by another court on an identical petition, then the remedy of the husband will be to resort to adjustment between the two orders. The amount passed by the former court or the latter court shall have to be adjusted against each other. This is the reason why the above reported decision is found not applicable to the present case. 5. Secondly, in the judgment of the Single Bench of this Hon'ble Court reported in C.H.N. 2000 (1) 511 it has been held that order passed by the learned Magistrate with regard to maintenance under section 125 of the Cr.P.C. shall be kept in abeyance so long as the wife gets alimony pendente lite under section 24 of the Hindu Marriage Act and the order made under section 125 of the Cr.P.C. will become operative as soon "as the order under section 24 of the Hindu Marriage Act ceases to exist. This is also, for all practical purposes, in observance of the principle that has been enunciated by the Apex Court discussed above. Here also the court has practically directed and effected adjustment between the orders of two different courts- one civil and another criminal. Be that as it may, at any rate, the petition filed before the criminal court for enhancement cannot be said to be illegal, or untenable and cannot be dismissed summarily on the ground that it is not maintainable. It may be heard on merits and at the time of hearing, at the most, the husband may draw the attention of the criminal court to an order passed by the High Court and it is for the learned Magistrate to consider the question in the light of the aforementioned legal principles. 6. Mr. It may be heard on merits and at the time of hearing, at the most, the husband may draw the attention of the criminal court to an order passed by the High Court and it is for the learned Magistrate to consider the question in the light of the aforementioned legal principles. 6. Mr. Mukherjee, learned advocate appearing on behalf of the opposite party-wife, draws my attention to the order of the Division Bench of this Court which is being relied upon by Mr. Sau, where it has been enjoined that the said enhancement will be effective subject to the final decision of the criminal court. So, this is sufficient to indicate that the learned Judges of the Division Bench kept the question alive and did not intend that the petition for enhancement of the amount of maintenance filed by the wife before the criminal court should be even a goby at the very initial stage. 7. In view of the foregoing reasons, I do not find any merit in the revisional application and the same is dismissed. The impugned order of the learned court below is affirmed. 8. Let urgent xerox certified copy of this order be given to the learned advocate for both parties as early as possible. Revisional application dismissed.