Jayanta Kumar Nath vs Mrs. Namita Rani Nath

Ranjan Kumar Mazumdar, J.—The instant Criminal Revisional application under Sections 401 and 482 of the Code of Criminal Procedure is directed against the order passed by learned Judicial Magistrate, Kalna, District Burdwan in Misc. (Execution) case No. 11/98 on November 9, 1998.

The case of the Petitioner was in brief that in or about June, 1993, he married the O.P. according to Hindu rites and customs and started living together as husband and wife. But unfortunately in or about August, 1993 the father-in-law of the Petitioner visited the house of the Petitioner and took his daughter being O.P. to his house with all ornaments and personal belongings of O.P. Subsequently on November 25, 1993, the O.P. filed a case against the Petitioner claiming maintenance u/s 125 of the Code of Criminal Procedure before the court of learned S.D.J.M., Kalna, Burdwan being Misc. Case No. 163/1993. Time flew by and on October 14, 1995, the O.P. gave birth to a male child. According to the Petitioner, since the O.P. did not come back to the matrimonial home despite several requests, the Petitioner had no other alternative but to file a MAT Suit No. 667/96 in or about June, 1996 before the court of learned District Judge at Alipore. The said suit was subsequently transferred to the court of the Additional District Judge, Alipore as MAT Suit No. 14/97. In or about April, 1997 the O.P. wife filed two applications in the said MAT Suit- one u/s 24 and the other Section 26 of the Hindu Marriage Act claiming her maintenance and that of the child. In the Misc. Nos. 11 and 12 of 1997 which arose out of the said MAT Suit u/s 24 of the Hindu Marriage Act. The learned Additional District Judge passed an order allowing the maintenance pendente lite at the rate of Rs. 1,000.00 to the O.P. and at the rate of Rs. 500.00 to the child with litigation cost of Rs. 1,500.00. This order was given effect from the date of filing the Misc. case u/s 24 of the Hindu Marriage Act. As already stated, the O.P. filed a Misc. case being No. 163/93 u/s 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, Kalna claiming maintenance for herself and the child. On August 16, 1997, learned Judicial Magistrate, Kalna passed an order directing the Petitioner to pay monthly maintenance at the rate of Rs. 1,000.00 to the O.P. and also monthly maintenance at the rate of Rs. 500.00 to the minor son. Thereafter O.P. filed Misc. (Execution) Case No. 11 of 1998 before the learned Judicial Magistrate, Kalna for realisation of Rs. 7,500.00 towards arrear monthly maintenance from August 18, 1997, as ordered in Misc. Case No. 163/93. Meanwhile, on November 9, 1998, the Petitioner moved a petition before the learned Judicial Magistrate, Kalna praying for adjustment of the maintenance amount as paid by the Petitioner in compliance with the order of maintenance passed in the Misc. Cases 11 and 12 of 1997 which arose out of the petition u/s 14 of the Hindu Marriage Act against the maintenance amount ordered in the case u/s 125 of the Code of Criminal Procedure by the learned Judicial Magistrate but the learned Judicial Magistrate rejected such a prayer on November 9, 1998. Hence the prayer for setting aside the impugned order dated November 9, 1998.

I have had the opportunity of hearing learned Counsels for both the parties at length. The impugned order passed by the learned Judicial Magistrate on November 9, 1998, is on record. According to the learned court below, there was no question of adjustment of the maintenance allowance inasmuch as the proceeding u/s 24 of the Hindu Marriage Act and the other proceeding u/s 125 of the Code were two different and independent proceedings.

At the time of hearing, learned Counsel for the Petitioner submitted that his client has been subjected to make double payment in respect of the maintenance orders passed by two different courts viz. court of Additional District Judge, Alipore and also the court of learned Judicial Magistrate, Kalna in two separate proceedings. According to him, his client has paid maintenance to the tune of Rs. 13,400.00 to O.P. in due compliance with the order passed by learned Additional District Judge, Alipore. None-the-less learned Judicial Magistrate, Kalna Was insisting on his client''s making payment of maintenance amount including the arrear maintenance vide order passed on November 9, 1998, in Misc. (Execution) Case No. 11/98. In that connection learned Counsel for the Petitioner drew my attention to the ruling reported in Sudeep Chaudhary Vs. Radha Chaudhary, wherein the Hon''ble Supreme Court has expressed the view that the amount awarded u/s 125 Code of Criminal Procedure is adjustable against the amount awarded in matrimonial proceedings u/s 24 of the Hindu Marriage Act as alimony to wife.

Learned Counsel for the O.P. submitted, on the other hand, that there was nothing wrong in the order passed by the learned Judicial Magistrate on November 9, 1998 and hence the instant revisional application was liable to be dismissed.

Admittedly, the O.P.-wife filed a case u/s 125 Code of Criminal Procedure against the Petitioner-husband claiming maintenance for herself and the minor child and that learned Judicial Magistrate, Alipore passed an order allowing maintenance at the rate of Rs. 1,000.00 per month to the O.P. and also at the rate of Rs. 500.00 to the child born out of the wedlock. It is again not in dispute the O.P. filed a petition-in MAT Suit No. 14/97 before the court of Additional District Judge, Alipore claiming maintenance pendente lite u/s 24 of the Hindu Marriage Act. The said matter was heard by learned Additional District Judge, Alipore and he passed an order allowing maintenance pendente lite at the rate of Rs. 1,000.00 per month to the O.P. and at the rate of Rs. 500.00 per month to the minor child. Such an order was passed u/s 24 of the Hindu Marriage Act. But controversy arose as to whether the Petitioner could be compelled to make payment as ordered by the learned Judicial Magistrate, Kalna without taking any notice of the hard fact that the Petitioner paid a lump sum of Rs. 13,400.00 to O.P. pursuant to the order of Hon''ble High Court in Civil Revision No. 2120/98 which arose out of MAT Suit No. 14/97 filed by the Petitioner at Alipore.

It transpires that a similar question about adjustment arose in Sailendra Nath Ghose v. State of West Bengal 1998 (1) C.L.J. 37 and it Was decided by a Single Bench of this High Court that the plea of adjustment was quite maintainable and that the plea of adjustment would not militate against the object of Section 125 of the Code of Criminal Procedure. In that connection it was also held that the amount paid by the husband to the wife towards alimony in pursuance of the order passed by the matrimonial court u/s 24 of the Hindu Marriage Act was liable to be adjusted against the amount payable by the husband to the wife u/s 125 Code of Criminal Procedure towards maintenance of the wife.

Again it appears that on a similar question, Hon''ble Supreme Court has expressed the view in a case Sudep Chawdhary v. Radha Chawdhary (Smt.)(supra) that the amount awarded u/s 125 of the Code of Criminal Procedure for maintenance was adjustable against the amount of alimony awarded in the matrimonial proceedings between the husband and wife. In the circumstances the present prayer for adjustment as made by the Petitioner ought to have been allowed by the learned Judicial Magistrate, Kalna. The order passed by the learned Judicial Magistrate, Kalna. The order passed by the learned court below in that regard must, therefore, be set aside.

In the facts and circumstances of the case, learned Judicial Magistrate, Kalna is directed to adjust the amount of alimony as already deposited by the Petitioner pursuant to the orders passed by a Single Judge of this Court in C.O. No. 2120 of 1998 on September 8, 1998, against the amount of maintenance payable u/s 125 Code of Criminal Procedure by the Petitioner-husband to the O.P. wife and to proceed according to law.

The instant Criminal Revisional application is thus disposed of.