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2010 DIGILAW 863 (CAL)

Sk. Sarifuddin v. STATE OF WEST BENGAL

2010-07-23

ASHIM KUMAR ROY

body2010
JUDGMENT 1. IN connection with a proceeding under Section 125 of the Code of Criminal Procedure the present petitioner was directed to pay maintenance @ Rs. 400/- per month for each of his two child. Such order was passed on February 13, 2003 and it was directed that the maintenance to be paid from the date of application, i.e., from May, 2002. 2. IT is now contended on behalf of the petitioner that for recovery of the arrear of maintenance for the period from May 6, 2002 to July 6, 2007 an application was moved before the Learned Court below on July 12, 2007. IT is the case of the petitioner that in view of proviso to sub-section (3) of Section 125 of the Code, in order to recover any amount due in terms of an order made under Section 125 of the Code necessary application has to be moved before the Court below within a period of one year from the date on which it became due. Such legal position has not been disputed by the Learned Counsel appearing on behalf of the opposite party/wife. Mr. Sanyal, Learned Counsel appearing on behalf of the opposite party admitted that it is true that such application for recovery of maintenance for the period from May 6, 2002 to July 6, 2007 was moved on July 12, 2007 and as such the amount that may be recovered is only from the month of July, 2006. 3. HOWEVER, having gone through the materials on record, I find that the order of granting maintenance was challenged in a criminal revision before this Hon'ble High Court in November 2005 and such application was disposed of on May 2007. HOWEVER, in the meantime the opposite party/wife has not moved for recovery of the arrear maintenance. There was also no order of stay of operation of the impugned order of awarding maintenance, thus there was no bar to move the Trial Court for recovery of arrear maintenance, still I am of the opinion in view of the fact the aforesaid criminal revision was pending before this Court from November 2005 till May 2007, therefore it would be expedient in the interest of justice to entitle them to the arrear maintenance from November 2005 till the date of disposal of the aforesaid criminal revision. Since, maintenance for each month was Rs. Since, maintenance for each month was Rs. 400/- each for two of her minor children, therefore the total arrear amount would be Rs. 15,200/- for the period from November 2005 to May 2007 and Rs. 1,600/- for the month of June 2007 and July 2007, i.e. a total sum of Rs. 16,800/-. Already by virtue of an order passed by this Court the petitioner has paid a sum of Rs. 10,000/- to the opposite party leaving a balance amount of Rs. 6,800/-. It is now directed that the petitioner shall liquidate the said balance amount of Rs. 6,800/- in ten monthly equal instalments and be paid along with the current maintenance, first of such instalment must be paid to the opposite parties within the first week of the next month and thereafter month by month. All further proceedings in connection with the impugned Misc. Execution Case shall remain suspended till July 2011 and in the meantime if the petitioner complies with this order the said proceeding shall be dropped, otherwise the Learned Court below shall have the liberty to proceed against the petitioner for recovery of arrear amount, if any. This application accordingly stands disposed of. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.