Smt. Kumkum Das vs Biswaranjan Das and Another

Asish Baran Mukherjee, J.—I have heard the learned Advocates representing the petitioner and also the opposite party-husband. The brief fact which has given rise to the present revisional application u/s 482, Criminal Procedure Code is that the petitioner-wife in course of a proceeding under the Hindu Marriage Act was awarded certain maintenance by way of interim alimony u/s 24 of the Hindu Marriage Act. Thereafter she resorted to an application u/s 125, Criminal Procedure Code for maintenance and that application was allowed on contest. Thereafter there was an application u/s 127, Criminal Procedure Code by the opposite party-husband which application was rejected by the learned Magistrate. The husband did not come up against either the order passed u/s 125, Criminal Procedure Code or the order passed u/s 127, Criminal Procedure Code. Since there was no payment in terms of the order u/s 125, Criminal Procedure Code, the wife resorted to an executing proceeding in course of which by order dated 5th April, 1997 the learned Magistrate directed the husband to pay maintenance as passed u/s 125, Criminal Procedure Code.

On the basis of the said revisional application the learned Sessions Judge while admitting the same stayed the order dated 5.4.1997 passed by the learned Magistrate. The present application preferred by the wife as against the order dated 7th July, 1997 passed by the learned Sessions Judge which the operation of the order dated 5.4.1997 of the learned Magistrate was stayed.

It is submitted by the learned Advocate appearing for the petitioner that the opposite party-husband did not challenge either the order u/s 125, Criminal Procedure Code or the order u/s 127, Criminal Procedure Code before any higher Forum; but since he was not paying maintenance in terms of the order u/s 125, Criminal Procedure Code, direction was given by the, learned Magistrate to make payment in terms of the said order. It is submitted that when the vires of the original order is not challenged and when no step was taken for rejecting the application of the husband u/s 127, Criminal Procedure Code the only conclusion would be that the opposite party-husband is bound to make payment in accordance with the order u/s 125, Criminal Procedure Code and as such the learned Sessions Judge was not right in staying the impugned order.

On behalf of the opposite party-husband it is argued that there cannot be two orders regarding maintenance one u/s 24 of the Hindu Marriage Act and the other u/s 125, Criminal Procedure Code, it is submitted that the husband actually challenged the order rejecting the application u/s 127, Criminal Procedure Code.

On scrutiny of a copy of the revisional application produced by the learned Advocate for the petitioner it appears that the opposite party-husband did not challenge either the order u/s 125, Criminal Procedure Code or the order u/s 127, Criminal Procedure Code but challenged simply the direction given on the husband to make payment by order dated 5.4.1977. Obviously this is a wrong step which has been taken by the opposite party-husband so long the original order u/s 125, Criminal Procedure Code remained intact and so long this order is not challenged in any higher Forum, the opposite party-husband is bound to make payment in accordance with the said order. The opposite party- husband has not come against any order u/s 125, Criminal Procedure Code or any other order and as such the learned Sessions Judge was not right in granting the blanket stay of the order dated 5.4.1997 when the original order u/s 125, Criminal Procedure Code remained intact.

In the circumstances the revisional application is disposed of on contest with the direction that the order dated 7th July, 1997 passed by the learned Sessions Judge, Barasat in Criminal Motion No. 441 of 1997 so far as it relates to the stay of the operation of the order dated 5.4.1997 passed by the learned Judicial Magistrate, 1st Court, Barasat in Case No. M. Ex. 73 of 1996 shall stand vacated.

Xerox certified copy of this order, if applied for, be given precedence.