Calcutta High Court (Appellete Side)
Sk. Nazrul Islam vs The State Of West Bengal & Anr on 19 December, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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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.3207 of 2014
Sk. Nazrul Islam
-Vs-
The State of West Bengal & Anr.
For the petitioner: Mr. Mujibar Ali Naskar.
For the opposite party No.2/wife : Mr. Jayak Gupta,
Mrs. Nafisa Begum.
Heard on : 04-12-2014.
Judgment on : 19-12-2014.
Ashim Kumar Roy, J.
The wife/opposite party No.2 for recovery of outstanding maintenance dues for the period from March 2008 to April 2013, moved an execution case being Misc. Execution Case No.41 of 2013 before the learned Additional Chief Judicial Magistrate, Uluberia, Howrah. When challenging the said proceedings and the order issuing distress warrant in connection therewith, the husband/petitioner moved a criminal revision before this Court being C.R.R. No.27/2014. On January 8, 2014, a coordinate Bench of this Court disposed of the said criminal revision directing the petitioner to deposit a sum of Rs.84,000/- within four months from that date and further directed that upon such deposit, the order of warrant of arrest be stand recalled automatically. While disposing of 2 the said application, the petitioner was given liberty to raise the question on the point of limitation towards the filing of the application for recovery of the outstanding maintenance.
The learned Counsel for the petitioner submitted that the petitioner has already deposited the said amount as directed by this Court and also filed a substantive application raising the question on the point of limitation and the said application is still pending. He further submitted that without disposing of the said application, the learned Magistrate once again issued the distress warrant against the petitioner. He also submitted that in the meantime, the petitioner deposited a sum of Rs.21,000/- in the court below and then in terms of the order of this Court, another sum of Rs.50,000/-. He then submitted that now it is prayed by the petitioner that the order of distress warrant be quashed and the learned court below be directed to dispose of the application pending before it as regards the point of limitation.
On the other hand, the learned Counsel appearing on behalf of the wife/opposite party No.2 submitted that still a sum of Rs.76,000/- is due for non- payment of the arrear maintenance for the current period. However, he has not disputed the contention of the learned Counsel of the petitioner about the deposit of sum of Rs.84,000/-, 21,000/- and finally Rs.50,000/- in the court below. He then submitted that the wife/opposite party No.2 could not have filed the application for enforcement of the order of maintenance since challenging the order of awarding maintenance, a criminal revision was pending before this Court. He further pointed out that while filing the application for recovery of maintenance amount, the learned Counsel conducting the case in the court below, due to some misunderstanding, had been advised his client to file the application for recovery of the maintenance amount, which became due from the date of filing of the main maintenance application till the disposal of the same. He further submitted that while disposing of the main maintenance application finally, the 3 learned Magistrate directed that such order would take effect from the date of the order and it is not disputed from the side of the opposite party No.2/wife that till date, a total sum of Rs.1,55,000/- has been deposited and still a sum of Rs.76,000/- is due and payable for non-payment of maintenance for the preceding eleven months and up to date.
Heard the learned Counsel appearing on behalf of the parties and considered their respective submissions. Perused the materials on record.
Since a coordinate Bench of this Court has given liberty to the petitioner to raise the question on the point of limitation so far as the recovery of the outstanding amount prior to April 2012 is concerned, this Court is not inclined to make any order in that regard and the learned Magistrate shall consider the application filed from the side of the petitioner in accordance with law after giving reasonable opportunity of hearing to the wife/opposite party No.2 and such application shall be disposed of by the learned Magistrate within four weeks from this date.
Having regard to the contention of the learned Counsel of the wife/opposite party No.2 that the main maintenance proceedings under Section 125 Cr.P.C. was finally disposed of with a direction that the order for payment of maintenance shall take effect from the date of filing of the said maintenance application and due to some mistake by the learned Counsel conducting the case in the court below, no prayer for recovery of arrear amount from the date of filing of the application and its disposal has been made, the wife/opposite party No.2 shall have the liberty to make such application.
In the meantime, it is directed that within two weeks from this date, the petitioner shall deposit a total sum of Rs.76,000/- in the court below towards the liquidation of arrear maintenance amount accrued during the preceding eleven months.
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I make it clear that the petitioner shall go on paying the current maintenance to the wife/opposite party No.2 in terms of the order passed by the court below and such payment be made by seventh of each month. The maintenance for this month, if not paid as yet, the same must be paid within a week from this date.
It goes without saying that if the petitioner failed to make any of the payment in terms of the order, as aforesaid, then in that case, the wife/opposite party No.2 shall have the liberty to proceed against the petitioner in accordance with.
Having regard to above, the distress warrant issued against the petitioner stands quashed and the criminal revisional application accordingly stands allowed and disposed of.
Urgent Photostat certified copy of this order, if applied for, be given to the parties at an early date.
( Ashim Kumar Roy, J. ) 5 6