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2008 DIGILAW 1036 (CAL)

Mahuya Nanda v. Tapan Nanda

2008-12-01

ASHIM KUMAR ROY

body2008
JUDGMENT 1. Heard Mr. Arindam Jana, the learned Counsel appearing on behalf of the petitioner-wife and Mr. Sanjay Saha, learned Counsel appearing on behalf of the husband-opposite party No.1. Perused the materials on records. 2. It appears that the petitioner-wife filed an application under section 125 of the Code of Criminal Procedure claiming maintenance for herself and her minor son. In connection therewith she also made a prayer for interim maintenance. The learned Court below awarded a sum of Rs. 750/per month for the wife and Rs. 1,000/- for the child as their interim maintenance. 3. It further appears that challenging the said order of granting interim maintenance the husband-opposite party moved a criminal revision being Cr. Revn. No.05 of 2008 before the learned Sessions Court at Purba Medinipur at Contai and the learned Additional Sessions Judge, Fast Track, 2nd Court Contai, allowed the said criminal revision directing that all further proceedings relating to the application under section 125 of the Code of Criminal Procedure pending before the Judicial Magistrate, Contai, shall remain stayed till the disposal of Matrimonial Suit No. 107 of 2004 pending before the learned Additional District and Sessions Judge, Contai. 4. Mr. Arindam Jana, the learned Counsel appearing on behalf of the petitioner-wife submitted before this Court in the year 2004 the husband-opposite party filed a suit for dissolution of marriage against the wife-petitioner. Whereupon the matrimonial suit No. 107 of 2004 has been registered and the same is still pending before the learned Additional District and Sessions Judge, Contai. He further submitted in connection with the said matrimonial suit the petitioner-wife has also moved an application under section 24 of the Hindu Marriage Act, when the learned Magistrate directed the opposite party-husband to pay a sum of Rs. 800/- per month as maintenance for the child and a sum of Rs. 1,000/- for maintenance of the wife. According to Mr. Jana, as no maintenance as directed under section 24 of the Hindu Marriage Act has been paid to the wife-petitioner, she was obliged to bring the said fact to the notice of the learned District Judge when learned District Judge has stayed all further proceedings relating to the said matrimonial case and the petitioner is not getting any maintenance in terms of the order passed in matrimonial suit. He further submitted that the impugned order passed by the learned Sessions Judge is absolutely illegal and without any jurisdiction and ought to be set aside. 5. Mr. Saha, on the other hand, submitted that the impugned order does not suffer from any illegality or infirmity and deserves no interference. 6. The xerox copy of the certified copy of the order sheets relates to matrimonial suit No. 107 of 2004 filed in Court be kept with the records. 7. I have given my anxious consideration to the rival submissions of the parties. Having gone through the impugned order, I am unable to sustain the same. Merely because in connection with a matrimonial suit, a Civil Court has passed order awarding maintenance in favour of the wife and child that would never operate as a bar in maintaining a proceeding under section 125 of the Code of Criminal Procedure. Both the proceedings are independent of each other and can continue simultaneously. However, the husband is not at all obliged to pay maintenance twice, once in terms of the order passed by the Civil Court and then in terms of the order passed in connection with a proceeding under section 125 of the Code of Criminal Procedure. He is only required to pay such amount of maintenance which is higher amongst the two, meaning thereby if the amount of maintenance granted in connection with matrimonial suit and the amount of maintenance granted in connection with proceeding under section 125 of the Code of Criminal Procedure are different, the husband is only obliged to pay the higher amount out of the same not to pay both in terms of the order passed by the Civil Court as well as the Criminal Court. 8. For the reasons stated above, the order impugned is set aside and the order passed by the learned Judicial Magistrate, 1st Court, Contai is restored. The opposite party/husband is directed to pay such• amount of maintenance which would be at the higher side amongst the amount of maintenance awarded in connection with matrimonial suit and the proceeding under section 125 of the Code of Criminal Procedure. The opposite party-husband is further directed to pay maintenance for the month of December, 2008 within a fortnight from this date and thereafter by 7th of each succeeding month. 9. The opposite party-husband is further directed to pay maintenance for the month of December, 2008 within a fortnight from this date and thereafter by 7th of each succeeding month. 9. The opposite party-husband is further directed to clear the arrear maintenance, if any, in 10 equal instalments which are to be paid alongwith the current maintenance. 10. The learned Magistrate is directed if it is brought to his notice that no maintenance is paid, he shall immediately take necessary legal action against the opposite party-husband for enforcing the payment of interim maintenance. 11. It appears that the aforesaid proceeding under section 125 of the Code of Criminal Procedure is pending since 2005, the learned Magistrate is directed to conclude the same as expeditiously as possible preferably within six months from the date of communication of this order. He is further directed to proceed on day to day basis and not to grant any unnecessary adjournment to either of the parties unless the Court finds the same is necessary for ends of justice. 12. The Criminal Section is directed to supply the urgent xerox certified copy of this order, if applied for, after completion of all legal formalities. Ashim Kumar Roy, J.: Appeal allowed.