Calcutta High Court (Appellete Side)
Sri Shibnath Roy vs Smt. Satabdi Roy (Aich) on 19 July, 2022
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
CRR 592 of 2021
Sri Shibnath Roy
Versus
Smt. Satabdi Roy (Aich)
For the petitioner : Mr. Pratip Mukherjee
Ms. Chaitali Mukherjee
Mr. Omar Faruk Gazi
..... Advocates
For the opposite party : Ms. Sucheta Biswas
Mr. Abhishek Chowdhury
..... Advocates
Heard on : 04.07.2022
Judgment on : 19.07.2022
Jay Sengupta, J.:
1. This is an application challenging an order dated 05.02.2021 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Barasat, North 24 Parganas in Criminal Revision No. 161 of 2018 arising out of Misc. Execution Case No. 104 of 2013.
2. Learned counsel appearing on behalf of the petitioner submitted as follows. On 28.06.2013, the Learned Magistrate had passed an ex parte 2 order of interim maintenance allowance at the rate of Rs. 10,000/- per month for the opposite party/wife and her minor child to be paid from the date of application. This was subsequently set aside by the learned revisional Court on 06.07.2015. The matter was remanded back for fresh adjudication after hearing the parties. The learned revisional Court made it clear that the petitioner should continue to pay interim maintenance allowance at the rate of Rs. 10,000/- per month. According to the petitioner, there should not be any arrears because by the learned revisional Court's order, the part of the learned Magistrate's order directing that interim maintenance allowance should be paid from the date of application, was automatically set aside. A warrant of arrest was, however, issued against the petitioner by the learned Executing Court in a proceeding for execution of arrears of interim maintenance allowance for a period till 2013. The same was stayed only after payment of a sum and the petitioner was asked to pay the rest. Subsequently, the learned revisional Court failed to interfere with the said order.
3. Learned counsel appearing on behalf of the opposite party relied on a statement of accounts prepared on behalf of the opposite party/wife and the minor child and submitted as follows. The opposite party and her child would be entitled to interim maintenance allowance even as per the order passed by the learned Magistrate. According to the chart, no sum was paid from 12.08.2009 i.e., the date of application till September 2013. However, it is true that from 09.10.2013 a sum of Rs. 10,000/- had been regularly paid by the petitioner each month.
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4. Learned counsels for the parties submitted that in the meantime a final order was passed by the learned Trial Court. While maintenance allowance was refused to the wife, it was granted to the child from the date of order. The order has become a subject matter of further challenge.
5. I heard the submissions of learned counsels appearing on behalf of the petitioner and the opposite party and perused the revision petition.
6. On 28.06.2013 the learned trial Magistrate granted interim maintenance allowance at the rate Rs. 5000/- each for the wife and the minor child, to be paid from the date of application i.e., 12.08.2009. Thereafter, the learned Sessions Court revised the said order on the ground that the husband/petitioner did not get sufficient opportunity of hearing. For the learned revisional Court to remand back the matter to the learned trial Court for fresh consideration, the order of interim maintenance had to be set aside. Yet, the learned revisional Court clearly directed the husband to go on paying Rs. 10,000/- per month maintenance of the wife and the minor child. These two directions have to be read harmoniously and not in isolation.
7. In fact, in a preceding paragraph of the judgment, the learned Sessions Court held as under-
"At the same time this Court cannot be unmindful of the sufferings and the plight as faced by the O.P. No. 1/wife and therefore this Court is of the opinion that even if the revisional application is allowed them (then) also such order will be passed subject to condition that the revisionist/husband shall be directed to pay maintenance to petitioner Smt. Satabdi Roy (Aich) as per terms of the order passed by the 4 Learned Trial Court till disposed (disposal) of the M Case No. 442 of 2009 such an order shall not prejudice the interest of the revisionist/petitioner considering the fact that the petitioner is a bank official this Court is not inclined to alter the amount at this stage."
8. It is absolutely clear from above that the intention learned revisional Court was never to alter the terms on which the payment of interim maintenance was directed. Therefore, when the learned Sessions Judge said "go on paying", the same would connote continuation of payment on the same terms as granted by the learned Magistrate. This would clearly imply that the husband was to continue to pay the interim sums from the date of application.
9. Now, it would not be prudent to conjecture about whether the fact that the payment was secured for the period from the date of application might have played a role in the learned trial Court subsequently directing in its final order payment of maintenance to the child from the date of order and not from the date of application.
10. However, it is trite law that maintenance allowance ordinarily should be paid from the date of application. Otherwise how would the wife or child fend for themselves in the intervening period? On this, reliance is placed on the decision of the Hon'ble Apex Court in Rajnesh vs. Neha, reported in (2021) 1 SCC (Cri) 749.
11. Another complication that arises in the instant case is that although interim maintenance was granted to both the wife and the child, the final order of maintenance is only in favour of the child and not the wife. But, the position of law cannot be such that if a husband can take a chance of 5 somehow avoiding or delaying the payment of interim maintenance to both till a final order is passed in favour of only one, he can do away with obeying the interim order, especially when an order has already been passed in an execution proceeding for the recovery of arrears of interim maintenance.
12. Although this has not been specifically argued on behalf of the petitioner, one has to deal with the issue of Doctrine of Merger in the present case. It is trite law that an interim order merges into a final order passed in a case. In fact, after a final order is passed, the earlier interim orders cease to exist. However, according to the ratio laid down in Puneet Chopra vs. Urvashi & Anr., 2015 SCC Online P & H 20410, even though the interim relief granted to a party ceases to exist after passing of a final order, any benefit accruing out of the interim order will not cease to be executable. This ratio assumes a greater significance when an execution order is passed for such interim order before a final order, to the contrary, could be passed.
13. There are certain special circumstances in the present case that would enure to the benefit of the opposite party wife. These may be enumerated as under-
First, the relevant provisions of law as contained in Chapter IX of the Code come within the sweep of Article 15 of the Constitution of India. Being a beneficial piece of legislation, any interpretation of or giving effect to its provisions has to be in consonance with the same.
Secondly, the learned Trial Court did not find any inherent infirmity in the wife's claim for maintenance although such claim was finally turned down on merits. For instance, it was not a fact that the two were not married.
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Thirdly and most importantly, this is not a case where a proceeding for recovery of arrears of interim maintenance allowance was initiated only after a final order, partly to the contrary, was passed. The learned executing Court passed an order for execution of arrears in 2018. This was affirmed by the learned Sessions Court in revision on 05.02.2021. Thereafter, the matter became pending before this Court in the instant second revision. After all these, on 15.02.2022, the learned Trial Court passed a final order. Therefore, by this time the right to claim arrears of interim maintenance allowance has not only accrued in favour of the wife, but has also been crystallised in the form of an order for execution. This should be as good as money in the wife's account. She cannot be held responsible for the delay in disposal of the subsequent revisions. At this advanced stage, even a final order to the contrary cannot thwart the wife's claim to the arrears of interim maintenance allowance earlier granted to her by the learned executing Court.
14. Therefore, I do not find any infirmity either in the proceeding before or in the order passed by the learned executing Court for recovery of arrears of earlier dues.
15. In view of the above discussions, I do not find any illegality in the impugned order dated 05.02.2022 passed by the learned revisional Court in Criminal Revision No. 161/2018.
16. Accordingly, the revisional application is dismissed.
17. However, there shall be no order as to costs.
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18. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J.) P. Adak