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High Court Of Calcutta
Dibyendu Bhusan Dutta
SAILENDRA NATH GHOSH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Crl. Revision 71 Of 1997
Decided On : 08/14/1997
MAINTENANCE - ADJUSTMENT - SECTION 125, CR. P. C. - SECTION 24, HINDU MARRIAGE ACT - ADJUSTMENT OF MAINTENANCE PENDENTE LITE AGAINST MAINTENANCE AWARDED UNDER SECTION 125, CR. P. C. - PERMISSIBLE - DOUBLE PAYMENT OF MAINTENANCE NOT INTENDED BY LAW.
Fact of the Case:
The petitioner-husband filed a revision petition against the order of the Magistrate awarding maintenance allowance to his wife under Section 125, Cr. P. C. The wife had also obtained an order from the Matrimonial Court directing the husband to pay maintenance pendente lite under Section 24 of the Hindu Marriage Act. The husband contended that the amount paid as maintenance pendente lite should be adjusted against the maintenance awarded under Section 125, Cr. P. C.
Finding of the Court:
The Court held that the plea of adjustment is quite maintainable and the Supreme Court decision in Ramesh Chander (supra) does not, in my opinion, militate against this view. The Court further held that the amount paid by the petitioner-husband to the opposite party-wife towards her maintenance in pursuance of the order passed by the Matrimonial Court under Section 24 of the Hindu Marriage Act is liable to be adjusted against the amount payable under Section 125 of Cr. P. C. towards her maintenance.
Issues: Whether the plea of adjustment of maintenance pendente lite against maintenance awarded under Section 125, Cr. P. C. is maintainable.
Ratio Decidendi: The Court relied on the following principles: * The object of Section 125 is to prevent vagrancy and destitution and to provide quick and summary remedy to a class of persons who are unable to maintain themselves. * Inability on the part of the wife to maintain herself is a sine qua non for the grant of maintenance allowance under Section 125, Cr. P. C. * Double payment of maintenance is not intended by law. * The order under Section 24 of the Hindu Marriage Act may be temporary and not a final determination, but if the amount of maintenance pendente life is discernible from the order under Section 24 and if the said amount is paid by the husband there is no reason for disallowing adjustment of such payments against the amount awarded under Section 125, even if the latter amount is quite sufficient for the wife's maintenance.
Final Decision: The revisional application was allowed subject to the modification of the impugned order to the effect that the amount paid as alimony pendente lite in the matrimonial suit by the petitioner-husband to the opposite party No. 2 be adjusted against the maintenance payable under the impugned order.
( 1 ) THE instant application under Section 482 of the Criminal Procedure Code is directed against the order dated 30. 11. 96 passed by the learned Judicial Magistrate, Seventh Court, Uluberia in Misc. Case No. 42 of 1995.
( 2 ) THE said case arose out of an application filed by the opposite party No. 1, Anita Ghosh under Section 125, Cr. P. C. The petitioner is her husband. Their marriage was solemnised according to Hindu rites and customs on 18. 2. 92. After the marriage, they lived together in the matrimonial home for some time. The opposite party No. 2 being infertile was undergoing medical treatment. There was no issue born out of their marriage. The opposite party No. 2 abandoned her matrimonial home on 30. 10. 94. The petitioner filed a matrimonial suit for divorce against the opposite party No. 2, being Mat. Suit No. 321 of 1994 in Second Court of Additional District Judge, Hooghly. The opposite party No. 2 lodged a complaint on 25. 1. 95 in Chandernagore Court alleging matrimonial cruelty against the petitioner. The opposite party No. 2 filed an application under Section 125 of the Criminal Procedure Code praying for maintenance allowance against the petitioner in the Court of Sub-Divisional Judicial Magistrate, Uluberia. Both the matrimonial suit and the complaint case are pending. In the matrimonial suit, the opposite party No. 2 had obtained an order being order No. 17 dated 8. 7. 96 directing the petitioner to pay alimony pendente lite at the rate of Rs. 700/- per month as well as litigation cost of Rs. 1500/- to the opposite party No. 2 and the petitioner has been paying the alimony pendente lite in terms of that order. During the trial of that case under Section 125, Cr. P. C. , the petitioner gave evidence in support of the payment of alimony at the rate of Rs. 700/- per month to the opposite party No. 2. But the learned Magistrate by his impugned judgment and order disposed of the case under Section 125, Cr. P. C. awarding maintenance allowance at the rate of Rs. 800/- in favour of the opposite party No. 2 without, however, considering the fact that the opposite party No. 2 was already receiving a sum of Rs. 700/- towards alimony pendente lite by virtue of the order passed in the matrimonial suit, as a result of which, the opposite party No. 2 is getting maintenance allowance from the petitioner twice a month.
( 3 ) MR. A. Goswami, the learned Counsel appearing for the petitioner contended that the learned Magistrate ought to have made provision in the impugned order for adjustment of Rs. 700 /-, the amount which the opposite party No. 2 is getting by way of maintenance pendente lite in terms of order dated 8. 7. 96 passed in the matrimonial suit against the amount of Rs. 800/- which he awarded in her favour towards her maintenance allowance. If this adjustment is not allowed, the petitioner will be unjustly saddled with a liability to make payment of maintenance allowance to the opposite party No. 2 twice a month. Accordingly, Mr. Goswami wants this Court to modify the impugned order by making provision for adjustment of the maintenance pendente lite.
( 4 ) MR. Goswami placed his reliance on two Single Bench decisions of our High Court. One is reported in 96 CWN 861 in the case of Gosai Ch. Das v. Beauty Das and State of W. B. , and the other is a subsequent unreported decision dated 16. 6. 96 in Criminal Revision No. 2504 of 1995 in the case of Manoj Kr. Chowdhury v. Jharna Chowdhury.
( 5 ) MR. Amit Talukdar, appearing for the opposite party No. 2, sought to resist the claim for adjustment. He argued that the two proceedings, namely the proceeding under Section 24 of the Hindu Marriage Act and the proceeding under Section 125, Cr. P. C. are two different proceedings. The order granting maintenance pendente lite in the matrimonial suit is not a final determination so as to be entitled to any serious weight in the proceeding under Section 125, Cr. P. C. The mere fact that the opp
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