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2018 DIGILAW 865 (CAL)

Ramaprasad Maity v. Mitra Maity

2018-11-30

JAY SENGUPTA

body2018
JUDGMENT : Jay Sengupta, J. 1. The petitioner has challenged an order dated 11.01.2018 passed by the Learned Judicial Magistrate, 3rd Court, Diamond Harbour, South 24 Parganas in M. Ex. Case No. 170 of 2016 on an application under Section 125 (3) of the Code of Criminal Procedure, thereby rejecting the petitioner's application and, inter alia, holding that the execution case could not be dropped on the ground of payment of alimony in a civil proceeding. 2. The Learned Advocate appearing on behalf of the petitioner submitted that on 15.02.2006, the Learned Judicial Magistrate, 3rd Court, Diamond Harbour, South 24 Parganas directed the present petitioner/husband to pay maintenance allowance to the present opposite party/wife under Section 125 of the Code at the rate of Rs. 1500/- per month in Case No. M. 363/99. According to the Learned Advocate, this sum was enhanced from time to time, lastly to Rs. 4500/- per month on 31.03.2010 in Misc. Case No. 2/2008. In the meantime the husband filed a suit for divorce. On 14.03.2011 the petitioner was directed to pay maintenance pendente lite under Section 24 of the Hindu Marriage Act to the opposite party no. 2 at the rate of Rs. 5000/- per month along with a litigation cost by the Learned Additional District Judge, 4th Court, Alipore, South 24 Parganas in Misc. Case No. 48 of 2008. The Learned Advocate contended that as the Learned Civil Court granted such sum after recording that his wife was already getting Rs. 4500/- per month as maintenance under Section 125 of the Code, the two sums have to be adjusted and only the higher sum of Rs. 5000/- per month shall be payable. 3. The Learned Advocate appearing on behalf of the opposite party/wife submitted that Rs. 5000/- as maintenance pendente lite was to be paid in addition to Rs. 4500/- payable under Section 125 of the Code per month. She submitted that in any event, an execution Court cannot travel beyond the main order. 4. I have heard the submissions of the Learned Advocates for the parties and have carefully perused the revisional application along with the annexure. 5. It further appears that on 08.11.2017 in Mat. Ex. 4500/- payable under Section 125 of the Code per month. She submitted that in any event, an execution Court cannot travel beyond the main order. 4. I have heard the submissions of the Learned Advocates for the parties and have carefully perused the revisional application along with the annexure. 5. It further appears that on 08.11.2017 in Mat. Ex. Case No. 1/12 the Learned Civil Court rejected a petition dated 24.09.2013 filed by the husband holding that the order dated 14.03.2011 passed by that Court was very much clear that the alimony order was passed excluding the maintenance awarded under Section 125 of the Code. It does not appear that this order was reversed or was even challenged by the present petitioner. 6. In the normal course, such sums awarded by orders passed independently in different proceeding on maintenance are adjusted with each other. But, from a careful reading of the order dated 14.03.2011 passed by the Learned Civil Court, it appears that the order of maintenance pendente lite was indeed passed in addition to the sum awarded under Section 125 of the Code. 7. In any event, an executing Court normally cannot travel beyond the order passed by the original Court. 8. In view of the above, I do not find any illegality in the impugned order. There is no merit in present revisional application and hence, the same is dismissed. However, there shall be no order as to costs. 9. A copy of this judgment shall be sent forthwith to the Learned Court below by Special Messenger.