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Calcutta High Court · body

2009 DIGILAW 871 (CAL)

Sumita Ganguly v. Debasish Ganguly

2009-12-02

ASHIM KUMAR ROY

body2009
Judgment :- (1.) In connection with a proceeding under Section 125 of the Code of Criminal Procedure, the husband/opposite party was directed to pay a sum of Rs. 1,000/-per month to each of the petitioner/wife and to her minor child as their monthly interim maintenance. (2.) Simultaneously, in connection with a Matrimonial Suit instituted by the husband/opposite party under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, the Civil Court invoking Section 24 of the Hindu Marriage Act directed the husband/opposite party to pay a sum of Rs. 4,000/-per month to the wife/petitioner as her maintenance pendente lite and a sum of Rs. 2,000/-per month to her minor child as the cost of maintenance. Since the husband/opposite party had been in default in payment of maintenance pendente lite to the wife/opposite party as well as the cost of maintenance to her minor child for some months, accordingly the Civil Court took steps for enforcement of the said order, when the husband, i.e., the opposite party herein moved a civil revision before this Honble Court, It may be noted in the meantime the husband/petitioner withdrew the said suit for restitution of conjugal rights. In the said civil revision it was vehemently urged by the husband/petitioner that the order of payment of arrear maintenance pendente lite and the cost of maintenance cannot be enforced since the original Matrimonial Suit in connection with which such order was passed is no more subsisting as the same was withdrawn. This Honble High Court by its order dated December 11, 2008 disposed of the said civil revision observing that since by virtue of the order passed by the Civil Court in connection with the Matrimonial Suit, the husband/opposite party was directed payment of maintenance @ Rs. 4,000/-and Rs. 2,000/- per month respectively for the wife and the child, thus the husband need not pay any additional amount in terms of the order passed by the Criminal Court in connection with the proceeding under Section 125 of the Code of Criminal Procedure. In the said order this Court further directed the husband/opposite party to pay the entire arrear amount within one month from that day. 2. In the said order this Court further directed the husband/opposite party to pay the entire arrear amount within one month from that day. 2. It is an admitted position that the husband/opposite party in terms of the aforesaid order of this Honble High Court has already paid the entire arrear amount accumulated due to the non-payment of maintenance pendente lite to the wife/petitioner and the cost of maintenance to her minor child. (3.) After making payment of arrear amount as aforesaid, on March 30, 2009, the husband/petitioner moved an application before the learned Court below where proceeding under Section 125 of the Code of Criminal Procedure was pending for appropriate order seeking exemption from payment of interim maintenance in terms of Criminal Courts order, since pursuant to the order of this Court passed in the aforesaid civil revision, he had already paid the entire arrear amount and no additional amount of maintenance in terms of Criminal Courts order is needed to be paid. The learned Additional Chief Judicial Magistrate, Serampore, Hooghly allowed the said application and the order of interim maintenance was recalled, hence this criminal revision. (4.) Mr. Amitava Ghosh, the learned Advocate appearing on behalf of the petitioner is present In Court. In spite of repeated calls none appears on behalf of the husband/opposite party. Affidavit of service showing that the envelop containing the notice and the copy of this application sent to him, has been returned unserved with the postal endorsement "Refused" filed in Court be kept with the records. (5.) Heard Mr. Ghosh. Perused the impugned order as well as the other materials on record. (6.) This is an admitted position that in terms of the order passed by this Court in a civil revision the petitioner has already paid all the arrear dues arising out of non-payment of maintenance pendente lite to the wife/petitioner as well as the cost of maintenance to her child. It is also an admitted position the Matrimonial Suit in connection with which the opposite party/husband was directed to pay maintenance pendente lite to the wife/opposite party and cost of maintenance to her child is no more subsisting as the Matrimonial Suit has been withdrawn by him. It is also an admitted position the Matrimonial Suit in connection with which the opposite party/husband was directed to pay maintenance pendente lite to the wife/opposite party and cost of maintenance to her child is no more subsisting as the Matrimonial Suit has been withdrawn by him. There is no dispute that this Court in civil revision took judicial notice that the Matrimonial Suit has been withdrawn and held that the husband/opposite party need not have to pay an additional maintenance in terms of the order of the Criminal Court. (7.) Now, having regards to the facts that High Court in a civil revision observed that the husband is not required to pay any additional amount of maintenance in terms of criminal Courts order as in connection with a Matrimonial Suit, a Civil Court directed him to pay higher amount of maintenance, the only question thus arises for decision in this criminal revision, is this, even after such Matrimonial Suit being withdrawn by the husband and when he is not paying any maintenance in terms of the civil Courts order, whether his liability to pay interim maintenance to his wife and the child in terms of the criminal Courts order passed in connection with a proceeding under Section 125 of the Code stands obliterated or not. (8.) Indisputably, a maintenance proceeding under Section 24 of the Hindu Marriage Act arising out of a Matrimonial Suit and a maintenance proceeding under Section 125 of the Code are completely distinct and different and they are worked for different purposes before the respective Court of competent jurisdiction. Both the proceedings are based on independent cause of action. One does not overlap the other. Where in a case of marriage between the parties has been solemnized according to the Hindu Marriage Act in appropriate case in terms of Section 24 of the Hindu Marriage Act either of the spouse is entitled to maintenance pendente lite from the other. In other words, according to Hindu Marriage Act, the husband as well as the wife both are entitled to maintenance pendente lite from the other. In other words, according to Hindu Marriage Act, the husband as well as the wife both are entitled to maintenance pendente lite from the other. Whereas, the right to maintenance according to Section 125 of the Code of Criminal Procedure is restricted to a wife, including a divorced wife still her remarriage, if not such right has been curtailed by operation of the special Act as well as to the minor children both the legitimate and illegitimate and the parents. In appropriate cases according to the said provisions the wife including divorced wife is entitled to maintenance from her husband, both legitimate and illegitimate child from their father and the parents both from their son and daughter. No husband is entitled to any maintenance under Section 125 of the Code from his wife as is entitled under the Hindu Marriage Act. The order granting maintenance pendente lite to the wife under Section 24 of the Hindu Marriage Act in connection with a Matrimonial Suit under Section 9 of the Hindu Marriage Act is not a final determination as to the entitlement of the maintenance of the wife and has no overriding effect, against an order of interim maintenance passed in a proceeding under Section 125 of the Code of Criminal Procedure. The mere fact the wife is receiving maintenance pendente lite by virtue of an order of Civil Court that does not debar her to maintain a proceeding under Section 125 of the Code of Criminal Procedure before the appropriate Criminal Court. The Magistrate is also not precluded from passing an order of maintenance in a proceeding under Section 125 of the Code of Criminal Procedure, despite there being an order of maintenance pendente lite passed in a Matrimonial Suit. As such where maintenance 10. Therefore, the order impugned stands set aside and the order earlier passed by the learned Magistrate where the husband/opposite party was directed to pay maintenance @ Rs. 1,000/-per month each to the wife/opposite party and to her minor daughter stands revived and restored. 11. The husband/opposite party is directed to pay the interim maintenance for the wife/petitioner and her minor daughter @ Rs. 1,000/- per month for each of them within seven days from the date of communication of this order. 1,000/-per month each to the wife/opposite party and to her minor daughter stands revived and restored. 11. The husband/opposite party is directed to pay the interim maintenance for the wife/petitioner and her minor daughter @ Rs. 1,000/- per month for each of them within seven days from the date of communication of this order. He is further directed to liquidate the entire arrear amount arising out of nonpayment of interim maintenance to the petitioner/wife and to her minor daughter from the date of his withdrawal of the Mat. Suit No. 93 of 2007 pending before the learned Additional District Judge, Fast Track, 6th Court, Barrackpore. It is further directed that such arrear amount must be liquidated in two monthly equal installments and be paid along with the current maintenance. In the event the husband/opposite party fails to pay the arrear maintenance as well as the current maintenance in the manner as aforesaid the petitioner/wife shall have the liberty to approach the learned Court below for enforcement of the order of maintenance. It is directed if any such application is filed by the wife/petitioner the learned Magistrate shall take steps at once in accordance with law for recovery of the maintenance. The Office is directed to communicate this order at once to the learned Court below as well as to the husband/opposite party herein through the local Police Station within three days from this date. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.