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2007 DIGILAW 771 (CAL)

Aloke Kumar Biswas v. STATE OF WEST BENGAL

2007-10-03

ASHIM KUMAR ROY

body2007
Judgment :- (1) HEARD Ms. Sanghita Chatterjee, the learned Advocate, appearing on behalf of the petitioner-husband as well as Mr. Pushpal Satpathi, the learned Advocate, appearing on behalf of the wife-opposite party No. 2. Perused the impugned order and other materials on record. (2) MS. Chatterjee, learned Advocate, appearing on behalf of this petition challenged the order passed by the learned Additional Chief Judicial Magistrate, Barrackpore in connection with a proceeding under Section 125 of the Code of Criminal Procedure granting interim maintenance at the rate of Rs. 800/- per month of the wife-opposite party. Ms. Chatterjee challenged the said order basically on the ground that although admittedly the marriage between the petitioner and the opposite party took place on April 18, 2006 but on that day her marriage with one Ashim Chatterjee, solemnized on 12th of December, 2004, was subsisting which was subsequently dissolved by virtue of decree of divorce on mutual consent passed by the learned Additional District Judge, Fast Track, 4th Court, Barrackpore in connection with Matrimonial Suit no. 523 of 2006 on 21st November, 2006. The certified copy of the order is produced in Court and be kept with the records of this case. This position has not been disputed by Mr. Sathpathi appearing on behalf of the opposite party no. 2. Ms. Chatterjee further submitted that in view of the aforesaid admitted position, it is absolutely clear and beyond all controversy that on the date the petitioner and the opposite party married each other, the opposite party/wife having his legally married husband alive. Thus, there cannot be any lawful marriage between them and she is not entitled to any maintenance from the petitioner as his legally married wife. (3) ON the other hand, Mr. Sathpathi submitted before this Court that the petitioner has not disputed the married and has failed an application for declaration which is now pending before the appropriate Court for a decree of nullity and until and unless the necessary order is passed therein his client is entitled to maintenance because according to Mr. Sathpathi in a case relates to a proceeding under Section 125 of the Code of Criminal Procedure strict proof of marriage is not necessary. Sathpathi in a case relates to a proceeding under Section 125 of the Code of Criminal Procedure strict proof of marriage is not necessary. (4) HAVING regard to the rival submissions of the parties as well as the materials on record, nobody I am of the opinion that except a legally married wife, nobody is entitled to any maintenance against any person in terms of section 125 of the Code of Criminal Procedure and the position that only the lawfully married wife is entitled to maintenance under Section 125 of the Code of Criminal Procedure is no longer res Integra and by a catena of decisions of the Apex Court as well as of our High Court the position stands well settled. In the present case upon consideration of the certified copy of decree of divorce passed by the learned Additional District Judge, Fast Track, 4th Court, barrackpore, in connection with Matrimonial Suit No. 623 of 2006 and the date of marriage between the parties as alleged by the petitioner/wife. Her application for maintenance, I am satisfied on the face of the same her claim for maintenance is not prima facie maintainable and thus she is not entitled to any interim maintenance. (5) I, therefore, set aside the impugned order whereby the opposite party has been granted interim maintenance payable by the petitioner herein. I direct the learned Magistrate before whom the maintenance proceeding is pending to dispose of the same after giving the parties the reasonable opportunity of establishing their case in accordance with law within four months from communication of this order. I also make it clear the observations hereinabove are made solely to resolve the controversy involved in the instant criminal revisional application and will not preclude the learned Court below to come it. Its own independent conclusion after proceeding with the matter in accordance with law. In the result, the impugned order stands set aside and application stands allowed.