Calcutta High Court (Appellete Side)
Sri Sanjoy Podder vs Smt. Jayati Podder on 13 August, 2008
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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. 2244 of 2008 Sri Sanjoy Podder Versus Smt. Jayati Podder For Petitioner : Mr. Srijib Chakraborty For Opposite Party : Mr. Srimanta Dutta Heard On : July 10th, 2008.
Judgment On : 13-08-2008.
Heard Mr. Srijib Chakraborty, the learned advocate, appearing on behalf of the petitioner as well as Mr. Srimanta Dutta, appearing on behalf of the opposite party/wife.
2. The subject matter of the challenge in the instant criminal revisional application is an order passed by the Learned Additional Chief Judicial Magistrate, Serampore in connection with Misc. Case No. 112 of 2006 whereby the Learned Magistrate rejected the petitioner's prayer for adjustment of amount of interim maintenance @ Rs. 1,000/- per month against the alimony pendentilite granted in favour of the wife/opposite party in a matrimonial proceeding.
3. The learned advocate appearing on behalf of the petitioner submitted before this court that in connection with a proceeding under Section 125 of the Code of Criminal Procedure being Misc. Case No. 112 of 2006 the Learned Chief Judicial Magistrate, Serampore directed the present petitioner to pay a sum of Rs. 1,000/- per month to the opposite party/wife as her interim maintenance. He further submitted in the meantime the petitioner moved an application under Section 9 of the Hindu Marriage Act before the Learned District Judge, Barasat and same was registered as Mat. Suit No. 83 of 2007 and in connection with the said suit the wife/opposite party made an application under Section 24 of the Hindu Marriage Act for maintenance pendentilite. When the Learned Additional District Judge, 3rd Fast Track Court, Barasat by his order dated July 30, 2007 passed an order directing the petitioner/husband to pay a sum of Rs. 3,000/- as maintenance pendentilite to the wife/opposite party. However the said order being challenged before this Hon'ble High Court in C.O. No. 3816 of 2007 this court reduced the amount of maintenance pendentilite to a sum of Rs. 2,000/- per month pending disposal of the said civil revision. According to Mr. Chakraborty the petitioner/husband is entitled to an adjustment and is only obliged to pay the higher amount to the wife/opposite party as her maintenance.
4. On the other hand, Mr. Srimanta Dutta, the Learned Counsel appearing for the wife/opposite party vehemently opposed such prayer and urged that there is no indication in the order passed by this Hon'ble High Court in the civil revision in question that the amount of maintenance granted in connection with the aforesaid proceeding under Section 125 of the Code of Criminal Procedure be adjusted against the maintenance pendentilite.
5. Having considered the rival submissions of the parties and considering the materials on record, I am of the opinion although there is no bar for a wife to claim maintenance both in a proceeding under Section 125 of the Code of Criminal Procedure as well as in connection with matrimonial proceeding and there is also no legal prohibition in continuing both the proceeding simultaneously but the amount of maintenance granted in one proceeding ought to be adjusted against the amount of maintenance granted in another proceeding, meaning thereby any amount of maintenance granted in connection with a proceeding under Section 125 of the Code of Criminal Procedure must be adjusted against the amount of maintenance pendentilite granted in connection with the matrimonial proceeding and the husband is only obliged to pay the wife the amount which is higher among the two.
6. For the reasons stated above, the impugned order is set aside. It is directed that the amount of maintenance which is directed to be paid by the Court in a proceeding under Section 125 of the Code of Criminal Procedure be adjusted against the alimony pendentilite granted in connection with a matrimonial proceeding and the husband/petitioner shall be liable to pay the amount which is higher out of the said two.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )