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2019 DIGILAW 472 (CAL)

Ajay Kumar v. Soma Kumar (Das)

2019-04-09

MADHUMATI MITRA

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JUDGMENT : 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner praying for an order to quash the proceedings being Miscellaneous Case No. 3786/2014 under Section 125 of the Code of Criminal Procedure, 1973 pending before the Learned Judicial Magistrate, 2nd Court, Barasat. Petitioner has also prayed for quashing of the proceedings in respect of Miscellaneous Execution Case No. 2 of 2016 under Section 125(3) of the Code of Criminal Procedure arising out of an order of maintenance passed in Miscellaneous Case No. 3786/2014 under Section 125 of the Code of Criminal Procedure. 2. The present petitioner was the opposite party of the proceedings being Miscellaneous Case No. 3786 of 2014 under Section 125 of the Code of Criminal Procedure filed by the present opposite party claiming for her maintenance. That application for maintenance was allowed ex parte on 24.08.2015 directing the present petitioner to pay maintenance to the opposite party at the rate of Rs. 5,000/- per month from the date of the filing application for maintenance. In the said order it was specifically mentioned that the opposite party i.e the present petitioner had the opportunity to contest the case. Present petitioner i.e the opposite party of that maintenance case appeared after the receipt of the notice but subsequently abandoned the case and consequently the case proceeded ex parte against him. 3. On 05.01.2016 the present opposite party initiated proceeding i.e Miscellaneous Execution Case No. 2/2016 under Section 125(3) of the Code of Criminal Procedure for recovery of arreas maintenance of Rs. 85,000/- for the period from 22.07.2014 to 21.12.2015 at the rate of Rs. 5,000/- per month from the present petitioner who is the opposite party of that case. 4. On 08.12.2017 Learned Magistrate was pleased to issue warrant of arrest against the present petitioner as he did not make payment. 5. On 03.03.2016 the present petitioner filed an application under Section 126(2) of the Code of Criminal Procedure praying for setting aside the ex parte order of maintenance passed by the Learned Magistrate in connection with Miscellaneous Case No. 3786 of 2014 under Section 125 of the Criminal Procedure Code. 6. In the mean time, the present petitioner filed a Matrimonial Suit being no. 279 of 2015 against the present opposite party praying for a decree of nullity of their marriage. 6. In the mean time, the present petitioner filed a Matrimonial Suit being no. 279 of 2015 against the present opposite party praying for a decree of nullity of their marriage. On 01.02.2016 the said suit was decreed and the marriage of the parties was declared null and void. 7. Learned Advocate appearing for the petitioner has forcefully contended that the marriage between the parties has been declared null and void by a competent Court of Law and as such the petitioner has no obligation to pay maintenance to the opposite party as per the ex parte order of the Learned Magistrate passed under Section 125 of the Code of Criminal Procedure. In support of his contention he has placed his reliance on a decision of Hon’ble Apex Court in Savitaben Somabhai Bhatiya vs. State of Gujarat and Others, AIR 2005 SC 1809 . Learned Advocate has invited the attention of the Court to paragraphs seven and eight of the said decision and strongly contended that at the time of deciding the prayer for maintenance of the wife, the Hon’ble Apex Court had made a specific observation to the effect that at the time of alleged marriage between the parties, the respondent/husband had spouse living and as such the appellant/wife was never a legally married wife of the respondent/husband. According to his contention the order of maintenance under Section 125 of the Code of Criminal Procedure as passed by Learned Magistrate in Miscellaneous Case No. 3786/2014 and the Execution Case for recovery of said maintenance amount should not be allowed to be continued as the marriage between the parties has already been declared null and void by a competent Court on the ground that the wife had a spouse living at the time of alleged marriage. 8. In the decision cited by the Learned Advocate for the petitioner, the appellant claimed maintenance for self and her child under Section 125 of the Code of Criminal Procedure claiming herself to be the legally married wife of respondent. On the other hand, respondent took the plea that the appellant was not his legally married wife. Learned Magistrate granted maintenance to the appellant and her child and the said order of maintenance was affirmed by Learned Additional District Judge. On the other hand, respondent took the plea that the appellant was not his legally married wife. Learned Magistrate granted maintenance to the appellant and her child and the said order of maintenance was affirmed by Learned Additional District Judge. Respondent challenged the order of maintenance before the High Court on the ground that appellant was not his legally married wife and High Court came to the conclusion that on the date of alleged marriage the respondent was already married and allowed maintenance to the child only. The dispute ultimately went to the Hon’ble Supreme Court and the view taken by the High Court was upheld on the ground that as the position in law stands presently there is no escape from the conclusion that the expression ‘wife’ as per Section 125 of the Code refers to only legally married wife. 9. Law on this point is quite explicit. Only the legally married wife is entitled to get maintenance under Section 125 of the Code of Criminal Procedure. 10. In the decision cited by the Learned Advocate for the petitioner, the husband contested the claim of the wife for maintenance under Section 125 of the Code of Criminal Procedure on the ground that she was not his legally married wife. On the other hand, in the present case the husband petitioner did not contest the maintenance case filed by the wife under Section 125 of the Code of Criminal Procedure though he had knowledge about the proceedings. The wife approached for execution of the order of maintenance as the husband/petitioner had failed to pay maintenance. In my view the decision as cited by the Learned Advocate for the petitioner would not help the petitioner to overcome the present situation. 11. In the present case maintenance under Section 125 of the Criminal Procedure Code was granted on 24.08.2015. The said order was an ex parte order though the husband had opportunity, but he did not contest. Thereafter, on 05.01.2016 wife put the maintenance order into execution and warrant of arrest was issued against the husband. Husband filed an application under Section 126(2) of the Code of Criminal Procedure after initiation of the execution proceedings by the wife on 05.01.2016. Decree of nullity of marriage was passed after the ex parte order of maintenance on 24.08.2015 and after initiation of execution proceeding on 05.01.2016. 12. Husband filed an application under Section 126(2) of the Code of Criminal Procedure after initiation of the execution proceedings by the wife on 05.01.2016. Decree of nullity of marriage was passed after the ex parte order of maintenance on 24.08.2015 and after initiation of execution proceeding on 05.01.2016. 12. From the materials on record it appears that the order of maintenance is still in force. The existence of a civil Court decree does not ipso facto bar a proceeding for recovery of arreas maintenance which has been initiated on the basis of an order under Section 125 of the Code of Criminal Procedure. It is well settled that a decision of Civil Court does not automatically wipe out an order of maintenance under Section 125 of the Code of Criminal Procedure. Proper remedy of the husband is to apply to the Magistrate under Section 127(2) of the Code of Criminal Procedure. Sub-Section (2) of Section 127 of the Criminal Procedure Code runs as follows:- 13. Where it appears to the Magistrate that, in consequence of the decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. 14. That means, an order under Section 125 of the Criminal Procedure Code shall remain in force unless and until it is cancelled or set aside by a Court of competent jurisdiction. 15. The inherent power of the High Court has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. There are three circumstances under which the inherent jurisdiction may be exercised namely: (i) To give effect to an order under the Code. (ii) To prevent abuse of the process of Court. (iii) To otherwise secure the ends of justice. 16. Quashing of the proceedings as prayed for by the petitioner would not be justified and reasonable by the tests laid down in Section 482 of the Code of Criminal Procedure. 17. Having regards to the facts and circumstances of the present case, I am of the opinion that it is not a fit case to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. CRR 269 of 2018 is dismissed accordingly. 18. 17. Having regards to the facts and circumstances of the present case, I am of the opinion that it is not a fit case to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. CRR 269 of 2018 is dismissed accordingly. 18. Urgent Photostat certified copy of this order, if applied for, shall be supplied to the parties expeditiously after complying with all necessary legal formalities.