Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 324 (CAL)

Dipak Samanta @ Dipak Kumar Samanta v. Aparna Samanta

2014-04-04

ASHIM KUMAR ROY

body2014
JUDGMENT Ashim Kumar Roy, J. 1. The opposite party herein, who happens to be the daughter of the petitioner, filed an application under Section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, 3rd Court, Serampore claiming maintenance of Rs.5,000/- per month from him. The learned Judicial Magistrate, 3rd Court, Serampore, however, rejected the said application on the ground that no daughter after attainment of majority, is entitled to maintenance unless her case falls within the ambit of section 125 (1)(c) CrPC. The opposite party challenged the said order in a criminal revision before the learned Sessions Judge, Hooghly, when the said criminal revision was allowed and the matter was remanded back to the court concerned for its reconsideration. While remanding back the matter, the learned Sessions Judge, Hooghly directed that pending disposal of the main maintenance proceedings, the petitioner shall go on paying a sum of Rs.4,000/- per month as interim maintenance to the opposite party. Accordingly, the aforesaid maintenance proceeding was commenced de novo and the learned Judicial Magistrate allowed the same and awarded a sum of Rs.8,000/- per month as the monthly maintenance to the opposite party. Hence, this criminal revision. 2. It is submitted by the learned Counsel for the petitioner that the proceeding has been challenged on the ground that the daughter having already attained majority, is not entitled to any maintenance under Section 125 CrPC. 3. In this regard, the learned Counsel for the petitioner relied on a decision of a coordinate Bench of this Court in the case of Swapan Kumar Dey –Vs- Jayita @ Chaita Roy reported in (2011) 3 C Cr LR (Cal) 548. He submitted that decision was based on a judgment of the Hon’ble Apex Court in the case of Amarendra Kumar Paul –Vs- Maya Paul & Ors. reported in (2009) 2 C Cr LR (SC) 800 and contended that the same are the authority on the issue and accordingly the order impugned cannot be sustained. In addition to the above, it is contended that in any event, the quantum of maintenance is too excessive, inasmuch as, the petitioner has to maintain his second wife and his two other daughters, who have born out of the second marriage. 4. In addition to the above, it is contended that in any event, the quantum of maintenance is too excessive, inasmuch as, the petitioner has to maintain his second wife and his two other daughters, who have born out of the second marriage. 4. Now, considering the submission of the learned Counsel for the petitioner, I find that the most crucial issue before this Court is whether the daughter after attainment of majority, is entitled to maintenance or not in terms of the provisions of Section 125 CrPC. There is no dispute that in the case of Swapan Kumar De –Vs- Jayita @ Chaita Roy (Supra), a co-ordinate Bench of this Court relying on a decision of the Hon’ble Apex Court in the case of Amarendra Kumar Paul –Vs- Maya Paul & Ors. (Supra) and held that the daughter after attainment of majority, is not entitled to maintenance under Section 125 CrPC. However, I find that during the hearing of the said criminal revision along with the decision of the Apex Court in the case of Amarendra Kumar Paul –Vs- Maya Paul & Ors. (Supra) andanother decision of the Apex Court in the case of Jagdish Jugtawat –Vs- Manju Lata & Ors. reported in 2002 SCC (Cri) 1147, was also referred. Although in the case of Jagdish Jugtawat –Vs- Manju Lata & Ors. (supra), the Apex Court held even after attainment of majority a daughter is entitled to maintenance from her father but in the subsequent decision of the Apex Court in the case of Amarendra Kumar Paul –Vs- Maya Paul & Ors. (Supra), the Apex Court answered the question in negative. However, the co-ordinate Bench of this Court held that daughter after attainment of majority is not entitled to maintenance from her father on the following observation. 5. In Jagdish Jugtawat (supra) the application for maintenance was, in fact, filed for a girl who was minor on that time. The Family Court allowed maintenance to the daughter who, ultimately, became major in course of trial although was a minor at the time of filing of the application. 5. In Jagdish Jugtawat (supra) the application for maintenance was, in fact, filed for a girl who was minor on that time. The Family Court allowed maintenance to the daughter who, ultimately, became major in course of trial although was a minor at the time of filing of the application. The Hon’ble Court did not interfere into the order passed by the Family Court on the ground that benefit of personal law (Hindu Adoptions and Maintenance Act) for awarding or continuing maintenance proceedings can be given to the applicant who is otherwise ineligible under Section 125 of the Code of Criminal Procedure to avoid multiplicity of the proceedings. 6. However, in the concluding portion of its judgment the Apex Court in paragraph 4 held as follows: Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 CrPC and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforesaid we are of the view that on facts and in the circumstances of the case no interference with th4e impugned judgment/order of the High Court is called for. 7. Not only as above, furthermore, the decision of the Apex Court in the case of Jagdish Jugtawat –Vs- Manju Lata & Ors. (supra) was rendered by a Bench of three Judges. Whereas the decision in the case of Amarendra Kumar Paul –Vs- Maya Paul & Ors. (Supra) was of the two- Judges. It goes without saying the decision of the larger Bench will prevail. Accordingly, the decision of the coordinate Bench of this court in the case of Swapan Kumar Dey versus Jayita @ Chaita Dey reported in (2011) 3 C Cr. LR (Cal) 548 is per incurium and has no binding effect. 8. Now, in the light of the decision of the Hon’ble Apex Court in the case of Jagdish Jugtawat –Vs- Manju Lata & Ors. (Supra), it cannot be said that after attainment of majority, a daughter is not entitled to maintenance. LR (Cal) 548 is per incurium and has no binding effect. 8. Now, in the light of the decision of the Hon’ble Apex Court in the case of Jagdish Jugtawat –Vs- Manju Lata & Ors. (Supra), it cannot be said that after attainment of majority, a daughter is not entitled to maintenance. Therefore, question of interference with the order impugned is not called for. 9. I have also very carefully gone through the order impugned and find no infirmity and same is a lawful and valid one. 10. Now, coming to the question of quantum of maintenance, I find although the daughter has prayed for maintenance @ Rs.5,000/- per month and the learned Sessions Judge, Hooghly in March, 2013 directed till the final decision of the matter, she will be entitled to interim maintenance @ 4,000/- per month but while passing the final order, the learned Judicial Magistrate, 3rd Court, Serampore awarded a sum of Rs.8,000/- per month. 11. In my opinion that justice will be subserved if the quantum of maintenance be reduced to Rs.7,000/-. The petitioner has to maintain his second wife and two daughters out of the second marriage, is no ground for reducing the maintenance any further. 12. The order of maintenance shall take effect from the date of passing of the impugned order i.e. from June, 2013. I make it clear if there is any outstanding, the same shall be liquidated in five monthly equal instalments and be paid along with the current maintenance. On the other hand, if the maintenance is clear upto date and has been paid as the rate as has been fixed by the court below so far as that amounts are concerned, there shall be no adjustment. 13. In the result, this criminal revision is allowed in part while the order of granting maintenance is not interfered the quantum of maintenance is reduced to the extent as above.