Calcutta High Court
Gossai Chandra Das vs Smt. Beauty Das And Anr. on 27 March, 1992
Equivalent citations: (1992)2CALLT38(HC), 96CWN861, II(1992)DMC274
JUDGMENT J.N. Hore, J.
1. Opposite Party No. 1 filed an application under Section 125 of the Criminal Procedure Code against the petitioner before the learned Chief Judicial Magistrate of Howrah for maintenance. Opposite party No. I also filed a similar application, for maintenance or alimony pendente lite Under Section 24 of the Hindu Marriage Act, 1955, in the pending matrimonial suit No. 11 of 1987 before the learned Additional District Judge, 13 Court at Alipore, 24-Parganas (South) filed by the present petitioner against opposite party No. 1 for divorce and the said application of the opposite party was allowed by the learned Judge on August, 31, 1987 directing the present petitioner to pay alimony pendente lite at the rate of Rs. 300/- per month to the opposite party No. 1 together with some arrears maintenance and also to pay a sum of Rs. 400/- towards litigation expenses. The petitioner filed an application Under Section 151 of the Code of Civil Procedure for recalling the said order dated August, 31, 1987 in view of changing circumstances of the petititoner. It is still pending for disposal.
As the present petitioner was absent. O.P. No. l's application for maintenance Under Section 125, Criminal Procedure Code was heard ex-parte by the learned Sub-Divisional Judicial Magistrate, Howrah and disposed of by order No 16 dated 4.1.89 directing the present petitioner to pay monthly allowance at the rate of Rs. 500/- payable within 10th of the month for which the allowance is due. The petitioner was also directed to pay the arrears maintenance from 14.10.1987 (the date of application for the maintenance by the opposite party No. 1) by monthly instalment at the rate of Rs. 500/- commencing from January, 1989 payable with 10th of every month till the liquidation of arrear. The said order of the learned Sub-Divisional Judicial Magistrate is under challenge in this revision.
2. Mr. Dutta. learned Advocate for the petitioner has contended that the O.P. No. l's application for maintenance Under Section 125 of Criminal Procedure Code is not maintainable in view of an application Under Section 24 of Hindu Marriage Act, 1955 filed by the O.P. No. 1 pending for disposal in matrimonial suit No. 11 of 1987 before the learned Additional District Judge 13th Bench at Alipore. It has been contended that the civil proceeding upon the proceeding instituted Under Section 125 of the Code Criminal of Procedure and in view of the order of alimony pendente lite passed Under Section 24 of the Hindu Marriage Act in the matrimonial proceeding the impugned proceeding Under Section 125 Criminal Procedure Code ought to have been dropped or at least stayed till the disposal of the matrimonial suit.
3. The contention of Mr. Dutta does not merit acceptance. A proceeding Under Section 125 of the Code of Criminal Procedure is an independent proceeding. Section 125 gives effect to the fundamental and natural duty of a man to maintain his wife, children and parents when they are unable to maintain themselves. It is applicable and enforceable whatever may be the personal law the persons concerned are governed. Sections 24 and 25 of the Hindu Marriage Act, 1955 do not stand in the way of relief Under Section 125 Criminal Procedure Code Section 4(b) of the Hindu Adoption and Maintenance Act, 1956 does not override th provisions of Section 125. Similarly, the provisions of Section 18 or 20 of tue Hindu Adoption and Maintenance Act, 1956 have not affected the right of the wife or the child under this Section The existence of a previous order for alimony does not oust the jurisdiction of the Magistrate to order maintenance Under Section 125 of the Criminal Procedure Code. The Section contains no direction that an order Under Section 125 cannot be made if there is order of Civil Court for maintenance. It cannot, therefore, be said that the present application Under Section 125 of the Criminal Procedure Code is not maintainable simply because an order of alimony pendente lite has been passed Under Section 24 of the Hindu Marriage Act in a matrimonial proceeding between the parties. There is also no question of staying the proceeding Under Section 125 Criminal Procedure Code till disposal of the matrimonial suit. The amount paid as alimony pendente lite in the matrimonial suit by the petitioner to the O.P. No. 1 may, however, be adjusted against the maintenance payable by the impugned order.
4. In the result, the revisional application is dismissed and the impugned order of the learned Magistrate is upheld only with the modification that any amount paid by the petitioner to the O.P. No. 1 as alimony pendente lite in pursuance of the order of the Court in the matrimonial suit may be adjusted against the amount payable under the impugned order Under Section 125 Criminal Procedure Code.