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2009 DIGILAW 97 (CAL)

Tapan Chatterjee v. Shila Chatterjee

2009-02-13

ASHIM KUMAR ROY

body2009
Judgment : ASHIM KUMAR ROY, J. (1) Heard Mr. Joymalya Bagchi, Advocate appearing with Ms. Sreyashee Biswas, Advocate for the petitioner as well as Mr. Pratick Kumar Chatterjee, Advocate appearing for the opposite party no. 1 and Mr. Sobhendu Sekhar Roy for the State. Perused the Lower Court Records. Considered their respective submissions and case laws relied upon by them. While Mr. Bagchi, relied on the decision relating to the case of Shahada Khatoon and Ors. Vs. Amjad Ali and Ors., reported in 1999 Cri. L. J. 5060, Mr. Pratik Kumar Chatterjee, relied on the case laws relied upon him in the case of Narayanan Vs. State of Kerala, reported in AIR 2008 (NOC) 1578 (Ker) and another in the case of Smt. Kuldip Kaur Vs. Surinder Singh and Anr., reported in 1989 Cri. L. J. 794 SC. (2) The present petitioner who happened to be the husband of the opposite party herein was directed to pay a maintenance @ Rs. 1,500/-per month to the wife/opposite party in connection with a proceeding under Section 125 of the Code of Criminal Procedure. Since the petitioner did not comply with the aforesaid order of payment of maintenance and a sum of Rs. 39,000/-has been accumulated as arrear maintenance, the wife/opposite party filed an execution case in the court below for enforcement of the order of maintenance. When the learned court below directed the petitioner to liquidate the said dues in 13 equal instalments to be paid along with the current maintenance. The petitioner challenged the said order in C.R.R. No. 2191 of 2007 before this Honble High Court, when this Honble Court permitted the petitioner to liquidate the said arrear amount in 25 equal monthly instalments instead of 13 monthly equal instalments. In spite thereof the petitioner did not pay any of the said instalments. It appears that the learned court below on several occasions granted time to the petitioner for making payment of the arrear amount in instalments as directed by this Honble Court but no payment was made. Subsequently, on March 6, 2008 the petitioner was produced before the court while he was in custody in connection with another execution proceeding arising out of the self-same maintenance case. When the learned court below sentenced him to suffer imprisonment till 4th of April, 2008 or till the payment is made. Subsequently, on March 6, 2008 the petitioner was produced before the court while he was in custody in connection with another execution proceeding arising out of the self-same maintenance case. When the learned court below sentenced him to suffer imprisonment till 4th of April, 2008 or till the payment is made. On April 4, 2008 the petitioner was produced from custody and as he did not pay the arrear maintenance he was again remanded to jail custody till 2nd of May, 2008 or sooner the payment is made. Then again on 2nd of May, 2008 he was remanded to custody till May 30, 2008 or till payment is made. In the meantime challenging the said order the instant criminal revision has been moved. (3) In the case of Shahada Khatoon and Ors. Vs. Amjad Ali and Ors. (supra) the Apex Court held as follows; Firstly, in terms of the provisions of Section 125 (3) of the Code of Criminal Procedure a Magistrate is empowered to impose imprisonment for a term which may extend to one month or until payment if sooner made. Secondly, the power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month, for breach of any order of payment of maintenance the wife can again approach the Magistrate for similar relief. Thirdly, no Magistrate is empowered to impose sentence for a period of more than one month. (4) Upon perusal of the Lower Court Records I find that the Learned Principal Judge, Family Court, Calcutta never sentenced the petitioner for any period exceeding one month and only after the expiry of one month imprisonment, when the petitioner was produced in court, due to noncompliance of courts order, the Learned Court passed a fresh order for imprisonment. However, it is true on those occasions no fresh prayer for similar relief was made by the wife/opposite party. Thus, the order of sentencing the petitioner to suffer imprisonment for non-payment of the maintenance without the court being approached by the wife/opposite party for similar relief is not in accordance with law as laid down by the Honble Apex Court in the case of Shahada Khatoon and Ors. Vs. Amjad Ali and Ors. (supra). In such view of the matter the order impugned cannot be sustained and same is set aside and the instant criminal revision succeeds. Vs. Amjad Ali and Ors. (supra). In such view of the matter the order impugned cannot be sustained and same is set aside and the instant criminal revision succeeds. (5) The petitioner is directed to appear in the Court below within 15 days from this date with a prior written intimation to the wife/opposite party about the date of his such appearance. On that day, if the default continues and the wife/opposite party moves the Court for similar relief the learned Court shall pass necessary order in terms of the provision of Section 125 (3) of the Code of Criminal Procedure and in the light of the observations of the Apex Court in the case of Shahada Khatoon and Ors. Vs. Amjad Ali and Ors. (supra). If not the petitioner appears in the Court in terms of direction given hereinabove, the Learned Magistrate shall have the liberty to proceed against the petitioner in accordance with law. Both the Learned Advocate of the petitioner as well as the opposite party/wife are directed to communicate this order to the petitioner immediately. (6) The office is directed to immediately sent down the Lower Court Records in course of tomorrow. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.