Entitlement to maintenance under Section 125 of the Code of Criminal Procedure despite existing maintenance from another proceeding.

JUDGMENT

The present revision has been preferred against the judgment and order dated October 12, 2018 passed by the Learned Additional Session Judge, 2nd Fast Track Court, Berhampore, District– Murshidabad in connection with Criminal Revision Case No. 277 of 2016, arising out of M.R. Case No. 76 of 2011, passed by the Learned Judicial Magistrate, 1st Court, Berhampore, District-Murshidabad, and judgment and order dated May 26, 2016 passed by the Learned Judicial Magistrate, 1st Court, Berhampore, District- Murshidabad, in M.R. Case No. 76 of 2011, under Section 125 of the Code of Criminal Procedure, 1973.

The petitioner’s/husband’s case is that he got married with the Opposite Party No.1 on 03.03.2006 as per Special Marriage Act and also on the same date their social marriage was solemnized socially.

After four year of their marriage the Opposite Party No.1 had filed an application under Section 125 of the Code of Criminal Procedure, 1973 before the Learned Chief Judicial Magistrate, Murshidabad and the same was registered as M.R. Case No.76 of 2011 and in the said application it was alleged that:-

“She was subject to mental and physical torture by her husband and mother-in-law and on 16.09.2010 her mother-in-law made her sign a paper of separation and on refusal her mother-in-law demanded Rs.2,00,000/- from the petitioner. On failure of the petitioner to do so she was confined in a room. She was rescued by her sister-in-law and brother-in-law and was treated in Hospital. Thereafter she was, driven out by her husband and mother-in-law from the matrimonial home. At present the petitioner is undergoing research work at Kalyani University, having no income whatsoever. The Opposite Party neither takes information nor pays any maintenance to the petitioner. The Opposite Party is an able bodied person and works as a specific officer (E) in the department of variable energy cyclotron Centre, department of Atomic Energy, 1 A/F – Bidhan Nagar, Kol- 64 having monthly income of Rs. 56,000/- per month. He also owns a Flat. She prayed for monthly maintenance to the tune of Rs.20,000/- and Rs.25,000/- of one time litigation cost”.

That after hearing the respective parties Ms. Khaleda Mannan, the Learned Judicial Magistrate, 1st Court, Berhampore, Murshidabad by an order dated 03.09.2011 was pleased to pass an order of interim maintenance to the tune of Rs. 5,000/- per month to the petitioner from the date of filing of this case till the disposal of the case.

That Learned Judicial Magistrate, 1st Court, Berhampore, Murshidabad after going through materials on records and evidence by an order and judgment dated 26th May, 2016 was pleased to pass the following order:-

“In the case in hand, as admitted, the gross salary of the Opposite Party (husband) is Rs.75,000/- and that in a proceeding under Section 24 of the Hindu Marriage Act, the Opposite Party has been directed to pay Rs.15,000/- per month as maintenance pendente lite and Rs.20,000/- as litigation cost to the petitioner. Thus, the petitioner has already been awarded I/5th of the gross salary of the Opposite Party that is Rs.15,000/- (Rs.75,000/-) (1/5*). Thus it would be infructuous to pass an order more that the amount already been granted as maintenance. Hence I hold that the petitioner is not entitled to get the maintenance as prayed for as per law.”

Being aggrieved by and dissatisfied with the judgment dated 26.05.2016 passed by the Learned Magistrate, 1st Court Berhampore, Murshidabad, the Opposite Party No.1 (being the wife of the petitioner had filed an application Under Section 397/399 of the Code of Criminal Procedure, 1973 before Shri Saugata Chakraborty, the Additional Session Judge, 2nd Fast Track Court, Berhampore of Criminal Revision Case No. 277 of 2016 and after hearing the learned Judge has been pleased to observe that:-

“the petitioner is entitled to monthly maintenance allowance despite the order of alimony pendente lite. The quantum