Prabhas Chandra Roy vs Manjushree Roy

Sankar Acharyya, J. - Petitioner Prabhas Chandra Roy has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) against his wife Manjushree Roy and son Dipankar Roy for setting aside order dated 26.05.2014 passed by learned Judicial Magistrate, 1st Court, Malda in Execution Case No. 101 M/2014 arising out of order dated 17.09.2013 for payment of interim maintenance of Rs.4000/- per month to petitioner''s wife and Rs.3000/- per month to his son under Section 125, Cr.P.C. in case No. 103 M of 2011. In the said order dated 26.05.2014 (hereinafter called as impugned order) learned Magistrate fixed 29.08.2014 for service return and appearance. In the prayer portion petitioner has also prayed for setting aside order of dismissal dated 21.01.2014 passed by learned Additional Sessions Judge, Fast Track, 1st Court, Malda in Criminal Revision No. 85 of 2013 affirming the order dated 17.09.2013 passed by learned Judicial Magistrate, 1st Court, Malda in Case No. 103 M of 2011 under Section 125, Cr.P.C.

Succinctly, the case of the petitioner is that marriage between petitioner and opposite party no. 1 took place on 14.12.1985. Although the petitioner does not admit the opposite party no. 2 as his son in the body of the application but he described the opposite party no. 2 as his son in the cause title of the application. He made allegations of extra marital relation of his wife with her bachelor maternal uncle Jayanata Kundu. Date of birth of opposite party no. 2 is 19.01.2014 as per paragraph- 2 of the application but according to the photo copy of birth certificate of opposite party no. 2 (annexure P 5) the date of birth is 07.01.1996. However, the petitioner has claimed that before the filing this application the opposite party no. 2 attained majority. A series of allegations against opposite party no. 1 have been made by petitioner in his application. Since the said allegations cannot be taken up for adjudication in this case detail discussion on those allegations is avoided. Relevant matters for consideration in this case are that the opposite party no. 1 filed case No. 103 M/2011 on 1.03.2011 under Section 125, Cr.P.C. in the Court of learned Chief Judicial Magistrate, Malda and that case was transferred to the 1st Court of learned Judicial Magistrate, Malda. In that transferee court this petitioner contested the prayer of opposite parties for interim maintenance allowance filing written objection. After contested hearing learned Judicial Magistrate passed the order dated 17.09.2013 granting interim maintenance allowance of Rs.4000/- per month for the opposite party no. 1 and Rs.3000/- per month for the opposite party no. 2 against the petitioner. Said order was challenged by petitioner filing revisional application being Criminal Revision No. 85 of 2013 in the Court of learned Sessions Judge, Malda. Said case was transferred to the 1st Fast Track Court, Malda for disposal and the case was disposed of by learned Additional Sessions Judge in that Court on 21.01.2014 affirming the order of interim maintenance allowance passed by learned Judicial Magistrate. Petitioner challenged that order dated 21.01.2014 of learned Additional Sessions Judge, 1st Fast Track Court, Malda filing CRR 1309 of 2014 under Section 482, Cr.P.C. A coordinate Bench of this High Court dismissed that CRR 1309 of 2014 on 06.06.2014. On 26.05.2014 opposite parties have filed Execution Case No. 101 M of 2014 under Section 128, Cr.P.C. in the Court of learned Judicial Magistrate for realisation of arrear maintenance allowance by executing the order of interim maintenance allowance passed in Case No. 103 M of 2011 under Section 125, Cr.P.C. On the date of filing the execution case the impugned order was passed for issue of notice upon petitioner of this case and next date 29.08.2014 was fixed for service return and appearance of this petitioner.

On 14.08.2014 in this case a conditional interim order of stay of further proceeding in connection with execution Case No. 101 M of 2014 was passed. Learned advocate for the petitioner submitted that the conditions imposed for the stay order were complied with by petitioner. He further submitted that the petitioner made payment to the opposite parties more than their entitlement. He further submitted that since the opposite party no. 2 attained majority he is not entitled to get any maintenance allowance from petitioner.

Having gone through the materials on record and having considered the submissions of learned advocate for the petitioner it appears to me that the order dated 17.09.2013 passed by learned Judicial Magistrate granting interim maintenance allowance in favour of opposite parties was confirmed by learned Additional Sessions Judge, 1st Fast Track Court, Malda in Criminal Revision No. 85 of 2013 on 21.01.2014 which was challenged filing CRR 1309 of 2014 under Section 482, Cr.P.C. by petitioner and that CRR 1309 of 2014 has been dismissed on 06.06.2014. As such, the order dated 17.09.2013 passed by learned Judicial Magistrate, 1st Court, Malda granting interim maintenance allowance in favour of opposite parties stands as good. In this case under Section 482, Cr.P.C. that matter cannot be reopened. Filing of execution Case being No. 101 M of 2014 under Section 128 of the Cr.P.C. for realisation of arrear maintenance allowance is the proper process of law and not an abuse of process of law. Petitioner has claimed that by passage of time the opposite party no. 2 has attained majority and has lost his entitlement to get benefit of the order dated 17.09.2013 granting interim maintenance allowance in favour of minor opposite party no. 2. There is provision in Section 127, Cr.P.C. for modification of maintenance order passed under Section 125, Cr.P.C in the Court of learned Magistrate. When there is specific provision in the Cr.P.C. for redress filing of application in High Court under Section 482, Cr.P.C. for same relief which may be available in the Court of learned Judicial Magistrate is not the proper course of law.

In the light of my observation, made above, I find and hold that petitioner''s application under Section 482 of the Cr.P.C. is devoid of merits and liable to be dismissed.

Accordingly, this application under Section 482, Cr.P.C. stands dismissed without any order as to costs.

Interim order, passed earlier, stands vacated.

A copy of this judgment be sent from the department to the 1st Court of learned Judicial Magistrate, Malda for information and expeditious disposal of the case under Section 125, Cr.P.C. and execution proceeding under Section 128, Cr.P.C. at the earliest in accordance with law.