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2013 DIGILAW 644 (CAL)

Subhasis Gupta v. Sritama Kar

2013-09-05

JOYMALYA BAGCHI

body2013
JUDGMENT : Joymalya Bagchi, J. 1. The petitioner has assailed the order dated 21.08.2012 passed by the learned Judicial Magistrate, 2nd Court, at Alipore in Misc. Case No. 35 of 2011 (T.R. 117 of 2011) granting interim maintenance to the tune of Rs. 20,000/- per month to the opposite party/wife. The case of the opposite party/wife is that she was married to the petitioner, who is admittedly a citizen of U.S.A. and is residing therein. The marriage was solemnized initially under the appropriate U.S laws of New Jersey, U.S.A. on 20th April, 2010. Thereafter, the parties came to India on 18th July, 2010. The marriage was solemnized according to Hindu Rites and Customs on 26th July, 2010 at Tarang, GD- 382, Salt Lake City, Sector III, Kolkata 700106. It has been alleged that during her matrimonial life the opposite party was subjected to ill-treatment by the petitioner/husband and presently she had taken refuge at her parental home in India and that the petitioner/husband has refused and neglected to maintain her in spite of having substantial income. The opposite party/wife has, therefore, prayed for maintenance to the tune of Rs. 2 lakhs per month from the husband. 2. An application for interim maintenance to the tune of Rs. 20,000/- per month was filed before the learned Magistrate. 3. The petitioner/husband entered appearance in the proceeding and filed a written objection taking a preliminary issue as to the maintainability of the application on the premise that the marriage had been solemnized in New Jersey, U.S.A. and that a divorce proceeding was pending before the Superior Court of New Jersey Chancery Division, Family Part Sussex Country. It has also been pleaded that the marriage of the parties, one of which is an Indian citizen, was not registered under the Foreign Marriage Act, 1969 and, therefore, no relief can be granted by an Indian Court in view of Section 18(4) of the said Act. The opposite party has also contested such claim in her reply. 4. The learned Magistrate after considering materials on record rebutted the plea of non-maintainability and passed an order granting interim maintenance to the tune of Rs. 20,000/- per month to the opposite party/wife. 5. Mr. Mukherjee, learned counsel appearing on behalf of the petitioner/husband stated that admittedly the marriage between the couple was not registered under the Foreign Marriage Act, 1969. The learned Magistrate after considering materials on record rebutted the plea of non-maintainability and passed an order granting interim maintenance to the tune of Rs. 20,000/- per month to the opposite party/wife. 5. Mr. Mukherjee, learned counsel appearing on behalf of the petitioner/husband stated that admittedly the marriage between the couple was not registered under the Foreign Marriage Act, 1969. He referred Section 18(4) of the Foreign Marriage Act, 1969 and submitted that no relief could have been granted by the learned Magistrate to the opposite party/wife. He further submitted that a decree of divorce has been obtained from the Superior Court of New Jersey wherein the opposite party/wife has given up her claim of alimony. He also submitted that in the written objection the preliminary issue of maintainability was only raised and right was reserved to file appropriate objection on merits. In spite of the same, the learned Magistrate has proceeded to pass an order on merits. 6. Mr. Barat, learned counsel appearing on behalf of the opposite party/wife drew my attention to the pleadings in the application filed under Section 125 of the Code of Criminal Procedure and stated that not only the marriage was solemnized in India but the parties resided as husband and wife in the country for a period of time. He further submitted that the provision of Section 18(4) of the Act of 1969 had no manner of application in respect of a proceeding under Section 125 of the Code of Criminal Procedure. He further submitted that the petitioner/husband is seeking to protract the proceeding by taking piecemeal objection. 7. I have considered the submissions of the parties. Section 17 of the Foreign Marriage Act, 1969 provides for registration of a marriage entered into by and between the parties, one of whom is a citizen of India, in a foreign country. Such marriage may be registered before a marriage officer as defined in sub-section (2) of Section 17 of the Act. In the event of such registration of marriage, matrimonial reliefs as provided under the Special Marriage Act, 1954 would be available to the parties to such a marriage. Section 18(4) of the Act of 1969, inter-alia, provides as follows:- "18(4). Such marriage may be registered before a marriage officer as defined in sub-section (2) of Section 17 of the Act. In the event of such registration of marriage, matrimonial reliefs as provided under the Special Marriage Act, 1954 would be available to the parties to such a marriage. Section 18(4) of the Act of 1969, inter-alia, provides as follows:- "18(4). Nothing contained in sub-section (1) shall authorise any Court to grant any relief under this Act in relation to any marriage in a foreign country not solemnized under it, if the grant of relief in respect of such marriage (whether on any of the grounds specified in the Special Marriage Act, 1954 (43 of 1954), or otherwise) is provided for under any other law for the time being in force." (Emphasis supplied by me) 8. Perusal of the aforesaid statutory provision makes it amply clear that its operation is within the field of the aforesaid legislation, namely the Act of 1969. In other words, Section 18(4) of the Act of 1969 debars a party from seeking relief under the said Act in the event a foreign marriage is not registered in terms of the Act of 1969. As relief of maintenance has been claimed by the wife under Section 125 of the Code of Criminal Procedure, 1973 and not under the provisions of the Act of 1969, the bar of Section 18(4) of the Act of 1969 would not disentitle her from pursuing such claim in respect of a foreign marriage unregistered under the Act of 1969, if she is otherwise entitled to do so under the Code. That apart, in the instant case, it has been claimed that the marriage, in fact, was solemnized under the provisions of the Hindu Marriage Act in India also and the parties even cohabited in the country. 9. For these reasons, I am of the view that the statutory bar under Section 18(4) of the Foreign Marriage Act, 1969 cannot operate as bar for instituting a proceeding under Section 125 of the Code of Criminal Procedure against the petitioner/husband in the facts of this case. 10. Coming to the other submission of the petitioner that he was not given an opportunity to defend the case on merits, I am of the view that the petitioner himself chose not to oppose the application of the opposite party/wife on merits. 10. Coming to the other submission of the petitioner that he was not given an opportunity to defend the case on merits, I am of the view that the petitioner himself chose not to oppose the application of the opposite party/wife on merits. Section 125 of the Code of Criminal Procedure envisages a summary proceeding for providing quick and prompt relief to deserted wife. The third proviso to sub-section (1) of Section 125 of the Code of Criminal Procedure, inter-alia, provides that an application praying for interim maintenance ought to be disposed of within sixty days from the date of the service of notice on the opposite party. It is, therefore, clear that the luxury of taking piecemeal defence, namely maintainability at the first instance and, thereafter that on merits, ought not to be permitted to a party deciding maintenance proceedings under Section 125 of the Code of Criminal Procedure. Be that as it may, it is, however, equally important that a party to a proceeding should be given adequate opportunity to defend himself. I, therefore, give the petitioner liberty to file further written objection to the application for interim maintenance within 15 days from today and upon such objection be filed, the learned Magistrate shall dispose of the same within four weeks thereof in accordance with law. However, in the meantime, the petitioner shall go on paying the interim maintenance to the tune of Rs. 20,000/- per month to the opposite party/wife, failing which the opposite party/wife would be entitled to take recourse to law for realisation of the same. With the aforesaid directions, the revisional application is disposed of. Parties are at liberty to rely on a copy of this order downloaded from the website of this Court before the Trial Court and the Trial Court shall proceed on the basis of such communication in accordance with law.