Rajashree Bagchi vs Sourav Bagchi

Subhendu Samanta, J

The instant application is preferred u/s 397/401 read with Section 482 of the Code of Criminal Procedure against the Judgment and Order dated 20th June 2017 passed by the Learned Judicial Magistrate, Fast Track Court Nabadwip, Nadia in connection with MR Case No. 229 of 2014 thereby directing the opposite party to pay a sum of Rs. 5000/-per month to the petitioner and Rs. 3000/- per month to their minor son as maintenance from the date of order, totalling Rs 8000/- per month as maintenance.

The brief fact of the case is that the marriage between the petitioner and the opposite party was solemnised on 27th June of 2010 according to the Special Marriage Act. Thereafter on 2nd December 2010 social marriage was solemnised according to the Hindu Rites and Customs. The marriages between the parties were duly consummated; out wedlock between the parties one son was born on 25th August 2012. Some matrimonial disputes cropped up between the parties consequently the petitioner and her son are now living separately. The opposite party did not pay maintenance to the petitioner and her son though the opposite party is a Government employee employed under the Director of Consumer Affairs and presently earning salary of Rs. 36000/-per month.

For getting maintenance, the petitioner for herself and for her son, has initiated a proceeding before the Learned Magistrate being MR Case No. 229 of 2014 u/s 124 Cr.P.C. The present opposite party contested the proceeding by filing written objections. The petitioner as well as OP both appeared before the Learned Magistrate and adduced their respective testimonies. After hearing the parties the Learned Magistrate has awarded the maintenance of Rs. 5000/- and Rs 3000/- per month towards the maintenance in favour of the petitioner and her son respectively and also ordered the maintenance allowance shall be effected from the date of the order.

Hence this revision.

Learned Advocate for the petitioner submitted before this court that the impugned order of maintenance passed by the Learned Magistrate is palpably illegal in the eye of law. Learned Magistrate has not considered the facts and circumstances of this case thus the meagre amount of maintenance was adduced. He also pointed out that the Learned Magistrate has not considered the income of the opposite party, on that score the order of maintenance should be enhanced. Thus she prayed for enhancement of the maintenance amount passed by the Learned Magistrate.

By filing supplementary affidavit the petitioner annexed several documents regarding the education of her son and the expenses thereof and trying to impress this court that presently it is not possible for the petitioner to carry out the living of herself as well as her son of such amount of maintenance.

Learned Advocate for the opposite party/husband submitted before this court that this revisional court is hearing an application u/s 482 of the Code of Criminal Procedure. The power enumerated u/s 127 C.r.P.C. enable the jurisdictional Magistrate to enhance the amount of maintenance in change circumstances. If the petitioner is aggrieved with the order of the Learned Magistrate regarding its amount thereof he may approach the jurisdictional Magistrate for its enhancement. He further argued that the impugned order of maintenance passed by the Learned Magistrate suffers no illegality and it is not at all perverse.

In reply Learned Advocate for the petitioner submitted before this court that the instant revision is pending since 2017; during the pendency of the instant revisional application the monthly salary of the opposite party has been increased considerably. Thus the order of maintenance need be enhanced.

Heard the Learned Advocate perused the materials on record also perused the impugned order it appears that the Learned Jurisdictional Magistrate has allowed the order of maintenance in favour of the petitioner and her daughter to the tune of Rs of total 8000/- . It is true that during the pendency of this instant revision the salary of the opposite party may have increased a lot but the factum of increasing of salary is not a subject matter before this revisional court. The impugned order passed by the Learned Magistrate is appears to me justified except the fact that the order should have been passed to effected from the date of filing of the petitioner u/s 125 Cr.P.C.

However, Learned Magistrate has not opined regarding the monthly income of the opposite party in this case. From the pleadings of the petitioner it reflected that OP, being a Government servant is earning Rs. 36000/- per month. The opposite party has not disclosed before the Learned Magistrate regarding his liabilities; thus I think it necessary that, the order of maintenance in favour of the destitute married lady and her son shall be commensurate with the income of the husband. In my view the 1/3 portion of the salary of husband would be sufficient to carry out living of the present petitioner and her son considering the status of the parties.

Thus, I am of a view that the impugned order of maintenance passed by the Learned Magistrate need by modified.

The opposite party/husband is directed to pay the maintenance to the petitioner to Rs. 7000/- per month and Rs. 5000 per month in favour of the petitioner and her minor son respectively. The order of maintenance shall be effected from the date of filing of the petitioner u/s 125 C.r.P.C.

The opposite party shall pay the aforesaid monthly maintenance regularly month by month within 10th day of each succeeding month according to English calendar year. The arrear of such maintenance amount shall have to be disbursed/paid within 06 months by three equal instalments, failing which the petitioner is at liberty to execute this order according to the provisions of law.

CRR is allowed.

Connected CRAN applications if pending are also disposed of.

Any order of stay passed by the court during the pendency of the instant revision is also vacated.

After pronouncement of the judgment Learned Advocate for the opposite party intends to pay the maintenance amount and arrear thereof directly to the bank account of the petitioner, accordingly Learned advocate for the petitioner advanced the account number of the petitioner so that the payment of maintenance including arrear thereof may be paid directly to the bank account of the petitioner. The account number of the petitioner is: Indian Bank

A/C No. - SB 50057186713

IFSC Code: IDIB000N501.

The opposite party is directed to pay the maintenance amount to the petitioner and his son through this bank account regularly according to the direction of this court. The violation of the direction of this court for making payment shall ensue an execution proceeding according to the law.

In future if the number of the bank account/bank is changed then the petitioner must inform the same to the opposite party well in advance.

Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.