Calcutta High Court (Appellete Side)
Ashim Kumar Chatterjee vs Smt. Moushumi Chatterjee Nee ... on 12 November, 2010
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 2536 of 2010 Ashim Kumar Chatterjee versus Smt. Moushumi Chatterjee Nee Bhattacharjee For Petitioner : Mr. Prabir Banerjee Heard On : August 25th, 2010.
Judgment On : 12-11-2010.
In connection with a maintenance proceeding under Section 125 of the Code of Criminal Procedure, by an ex parte order the present petitioner was directed to pay maintenance @ Rs. 1,500/- per month each to his wife and to his minor daughter. Such order of maintenance was never been challenged and same has reached finality. As the petitioner failed to pay maintenance, the wife/opposite party instituted a Misc. Execution case being Execution Case No. 51 of 2007 for realization of arrear maintenance. At that stage the petitioner moved an application under Section 127 of the Code of Criminal Procedure for 2 alteration of the amount of maintenance on the ground in terms of an order passed by a Civil Court in connection with a matrimonial suit he has been paying a total sum of Rs. 600/- per month as the alimony pendentilite for his wife. The Court concerned rejected such application when the petitioner moved a revision before the Sessions Court, where he also lost. Hence, this criminal revision.
2. Admittedly, this is a second revision, as such the entertainment of the same is not legally permissible in view of the specific statutory bar contained in sub-section (3) of Section 397 of the Code of Criminal Procedure, unless the person seeking revision for second time makes out a case showing that the order impugned suffers from manifest illegality and brings out a situation which is completely an abuse of process of Court.
3. Now, coming to the case at hand, I am of the opinion that no Court can go into the legality and validity of order passed in connecting with the proceedings under Section 125 of the Code of Criminal Procedure, which has already reached finality. However, if the petitioner is able to prove that in terms of order passed by the Civil Court in connection with a matrimonial suit, he has been paying alimony pendentilite to the wife/opposite party the said amount of money must be adjusted against the amount of maintenance directed to be paid in connection with a proceeding under Section 125 of the Code of Criminal Procedure. Accordingly, I dispose of this application directing that the petitioner shall have the liberty to pray before the Court below for adjustment of the amount of maintenance, if any, he has been paying to the wife/opposite party in terms of the order of the Civil Court against the amount of maintenance, which 3 has now been directed to be paid by the criminal Court. The petitioner shall have also the liberty to approach the Court with prior notice to the opposite party/wife for necessary adjustment of the arrear maintenance amount. It is further directed that if any such application is moved the Learned Court below shall at once dispose of the same in accordance with law after hearing both the parties.
This criminal revision is thus disposed of.
The petitioner is directed to communicate this order to the wife/opposite party within two days from the date of receipt of the certified copy of this order.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
( Ashim Kumar Roy, J. )