Calcutta High Court (Appellete Side)
Sri Abhishek Chatterjee vs Smt. Piyet Chatterjee & Anr on 26 March, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 546 of 2018
With
C.R.A.N. 2525 of 2018
Sri Abhishek Chatterjee
-Versus-
Smt. Piyet Chatterjee & Anr.
Advocate for the Petitioner : Mr.Pawan Kumar Gupta
Heard on : 06.03.2019
Judgment on : 26.03.2019
Madhumati Mitra, J. :
Opposite party no.1 filed an application under Section 125 of the Code of Criminal Procedure in the year 2012 claiming maintenance for self and her minor daughter before the learned Magistrate. That application was registered as Miscellaneous Case No.321 of 2012. In that case the opposite party no.2 prayed for an order of interim 2 maintenance. On 17.04.2014 learned Magistrate directed the present petitioner to pay monthly interim maintenance of Rs.10,000/- (Rupees Ten Thousand) to the present opposite party and her minor daughter from the date of the order till final disposal of the application under Section 125 of the Code of Criminal Procedure or any modification as per law, if any, month by month which should shall fall due on expiry of every seventh succeeding months. Opposite party-wife was given liberty by the learned Magistrate to put the order of interim maintenance into execution.
On 16.12.2014 in proceedings under Section 24 of Hindu Marriage Act, the present opposite party-wife was allowed pendentilite alimony at the rate of Rs.8,000/- (Rupees Eight Thousand) for self and Rs.3,000/- (Rupees Three Thousand) for her minor daughter amounting to Rs.11,000/- (Rupees Eleven Thousand) in total.
Present petitioner approached before the learned Court for modification of the order dated 16.12.2014 passed in connection with the application under Section 24 of the Hindu Marriage Act regarding pendentilite alimony on the ground that the present opposite party-wife and her minor daughter were already allowed interim maintenance under Section 125 Code of Criminal Procedure. The prayer for modification of the order passed under Section 24 of the Hindu Marriage Act was turned down by the Learned Court on the ground that 3 it was the settled principle of law that higher amount was to be paid by the husband and both the order under Section 125 Code of Criminal Procedure and under Section 24 of Hindu Marriage Act should be considered to be merged.
On 24.02.2016 the present opposite party-wife filed an application under Section 125(3) of the Code of Criminal Procedure praying for recovery of arrear of maintenance of sum of Rs.1,20,000/- (Rupees One Lakh Twenty Thousand) for the period from February 2015 to January 2016 in connection with the order dated 17.04.2014 in Misc.Case No.321 of 2012. That application was registered as Misc.Execution Case No.25 of 2016. In that execution case distress warrant was issued against the petitioner. On 29.06.2017 the present petitioner prayed for an order to recall the said distress warrant on the ground that he paid the entire amount of maintenance for the period from February, 2015 to January, 2016 at the rate of Rs.11,000/- (Rupees Eleven Thousand) per months in terms of order under Section 24 of Hindu Marriage Act in Matrimonial Suit. Prayer of the present petitioner-husband was rejected by the learned Magistrate on 30.08.2017.
Learned Advocate for the petitioner has contended that the petitioner already paid the entire amount of maintenance to the opposite party and her minor daughter for the period from February, 4 2015 to January 2016 in terms of the order passed in the proceeding under Section 24 of the Hindu Marriage Act. It is his specific contention that the opposite party-wife was allowed maintenance for self and her minor daughter both under Section 125 Code of Criminal Procedure and under Section 24 of the Hindu Marriage Act amounting to Rs.10,000/- and Rs.11,000/- in total respectively. The total amount of maintenance passed in matrimonial proceeding under Section 24 of the Hindu Marriage Act is higher than the amount of interim maintenance passed under Section 125 of the Code of Criminal Procedure. According to him, when a party is asked to pay maintenance under different provisions of law, then the person is only required to pay such amount of maintenance which is higher.
In support of his above contention, learned Advocate appearing for the petitioner has invited the attention of the Court to several decisions reported in 1997 (11) SCC 286 (Sudeep Chaudhary Vs. Radha Chaudhary), 2001 (Sup) BCR 739: 2001(2) SLT 485 : 2001(4) Supreme 331 (Sanjay Chopra Vs. Shyam Chopra), 2008(22) RCR 894 (Criminal) (Mahuya Nanda Vs. Tapan Nanda).
The petitioner has challenged the order dated 3rd March, 2017 and 30th August, 2017 passed in Misc.Execution Case No.25 of 2016 arising out of Misc. Case No.421 of 2014 pending before the Court of learned Judicial Magistrate, 2nd Court, Durgapur, Burdwan. The 5 petitioner has made prayer for quashing the said Misc.Case Execution proceedings being no.25 of 2016 on the ground that the arrear amount of maintenance as claimed by the petitioner for the period from February, 2015 to January, 2016 already paid by him in connection with the proceeding under Section 24 of the Hindu Marriage Act. The learned Advocate appearing for the petitioner has drawn the attention of the Court at pages 27 to 41 (annexed documents) and contented that the petitioner has already paid maintenance to the opposite party-wife in terms of the order passed in the proceedings under Section 24 of the Hindu Marriage Act.
From annexure P-2, it appears that one Misc.Case being No.26 of 2013 was initiated at the instance of the present opposite party-wife under Section 24 of the Hindu Marriage Act. The learned Additional District Judge, Durgapur on 16.12.2014 disposed of the said application with a direction upon the present petitioner who was the opposite party of that Misc.Case to give pendentilite maintenance to the present opposite party and her minor daughter at the rate of Rs.11,000/- (Rupees Eleven Thousand) in total. Order of pendentilite maintenance under Section 24 of Hindu Marriage Act was passed after passing of the order in Misc.Case No.321 of 2012. The order of interim maintenance under Section 125 Code of Criminal Procedure was passed on 17.04.2014. The amount of maintenance granted under Section 24 of the Hindu Marriage Act is higher than the amount granted under 6 Section 125 of the Code of Criminal Procedure. From the documents placed on record it appears that the petitioner paid maintenance at the rate of Rs.11,000/- per month to the opposite party-wife and her minor daughter for the period in respect of which the Misc. Execution Case was filed by the opposite party-wife before the Court in connection with the order of interim maintenance passed in Misc.Case No.321 of 2012 under Section 125 Code of Criminal Procedure. Now, the question comes whether the higher amount of pendentilite maintenance as determined under Section 24 of the Hindu Marriage Act can be adjusted against the amount of interim maintenance granted under Section 125 Code of Criminal Procedure.
Law on this point is quite explicit.
Our Apex Court had the occasion to deal with similar type of question in Sudeep Chaudhary-appellant Vs. Radha Chaudhary- respondent in Criminal Appeal No.111 of 1997. A plea was taken on behalf of the husband in that case that the maintenance amount granted under Section 125 Code of Criminal Procedure should be adjusted against interim alimony granted under Section 24 Hindu Marriage Act. In the above mentioned decision the Hon'ble Apex Court was of the view that the amount for maintenance awarded under Section 125 of the Code of Criminal Procedure was adjustable against the amount awarded in matrimonial proceedings.
7
From the copies of documents as placed on record by the petitioner it appears that the petitioner paid maintenance at the rate of Rs.11,000/- per month as awarded as pendentilite alimony under Section 24 of Hindu Marriage Act for the period from February, 2015 to January 2016. The amount of interim maintenance awarded in Misc.Case No.321 of 2012 was Rs.10,000/- in total per month. Misc.Execution Case being No.25 of 2016 was initiated for recovery of arrear maintenance for the period from February 2015 to January 2016. The amount of Rs.10,000/- per month for interim maintenance awarded under Section 125 Cr.P.C in Misc.Case No.321 of 2012 is adjustable against the amount granted as pendentilite alimony under Section 24 of Hindu Marriage Act. That means the present petitioner had paid the amount of pendentilite maintenance at the rate of Rs.11,000/- per month which included the interim maintenance at the rate of Rs.10,000/- per month under Section 125 Code of Criminal Procedure as claimed by the opposite party-wife in Misc.Execution Case being No.25 of 2016 arising out of Misc.Case No.321 of 2012. Learned Magistrate was not justified in rejecting the contention of the petitioner that the amount of pendentilite maintenance under Section 24 of Hindu Marriage is adjustable with the amount of maintenance under Section 125 of the Code of Criminal Procedure. Learned Magistrate failed to appreciate that the pendentilite maintenance under Section 24 of Hindu Marriage Act includes the amount of interim maintenance under Section 125 Code of Criminal Procedure. The impugned orders passed 8 by the learned Judicial Magistrate,2nd Court, Durgapur, Burdwan, are not tenable in law and both are liable to be set aside.
The petitioner has also prayed for an order to quash the execution proceedings. The amount of maintenance granted under Section 125 Code of Criminal Procedure is adjustable with the pendentilite maintenance awarded under Section 24 of the Hindu Marriage Act. Moreover, it appears that the petitioner had already paid the amount of pendentilite alimony under Section 24 of the Hindu Marriage Act, which was higher than the amount of maintenance awarded under Section 125 Code of Criminal Procedure for the period for which the execution case was initiated by the opposite party.
Considering the factual situation, I am of the view that it is a fit case to exercise discretion under Section 482 of the Code of Criminal Procedure as the continuation of Misc.Execution Case No.25 of 2016 would be an abuse of the process of the Court. As a result the application under Section 401 read with Section 482 Code of Criminal Procedure being C.R.R.No.546 of 2018 is allowed. Let the proceedings being Misc.Execution Case No.25 of 2016 arising out of Misc.Case No.321 of 2012, pending before the learned Judicial Magistrate, 2nd Court, Durgapur, Burdwan be quashed. The impugned orders dated 3rd March, 2017 and 30.08.2017 passed in connection with that Misc.Execution Case being No.25 of 2016 arising out of Misc.Case 9 No.321 of 2012 pending before the learned Judicial Magistrate, 2nd Court, Durgapur, Burdwan, become infructuous.
Re: CRAN 2525 of 2018 Main application being C.R.R.546 of 2018 has already been allowed. Accordingly, C.R.A.N.2525 of 2018 becomes infructuous and stands dismissed. No order as to costs.
Urgent photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.
(Madhumati Mitra, J.)