At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE P.N. SINHA
For the Appearing Parties: Biswajit Basu, Monali Biswas, Pradip Kr. RoY, Tarun Kr. Banerjee, Advocates.
P.N. SINHA, J.
(1) THIS revisional application under section 482 of Code of criminal Procedure (hereinafter called Cr. P. C.) read with Article 227 of the constitution of India is directed against the order No. 3 dated 3. 9. 2003 passed by the learned Judge, Family Court, Calcutta in Misc. Case No. 159 of 2003. The learned Judge by the impugned order rejected the application filed by the present petitioner challenging maintainability of the petition under section 125 of Cr. P. C. filed by O. P. No. 1 during pendency of MAT suit between the parties and pendency of section 24 of the Hindu Marriage Act (hereinafter called h. M. Act) petition filed by the wife in the matrimonial suit claiming maintenance pendent elite,
(2) MR. Tarun Banerjee, learned senior advocate of the petitioner contended that section 24 of the H. M. Act application filed by the wife O. P. No. 1 is almost at the concluding stage in the MAT suit now pending in the Court of learned judge, Family Court, Calcutta. Recording of evidence of the wife has been completed and evidence for this petitioner is pending. The O. P. No. 1 has already claimed maintenance in the section 24 H. M. Act petition. Subsequently, thereafter her petition under section 125 of Cr. P. C. is with mala fide intention and proceeding of the section 125 Cr. P. C. application should be kept in abeyance till disposal of the section 24 of H. M. Act application as well as MAT suit. The learned Judge without applying judicial mind by the impugned order without applying judicial mind by the impugned order dated 3. 9. 2003 rejected the application of petitioner and failed to exercise his jurisdiction properly. Accordingly all further proceeding of Misc. Case No. 159 of 2003 under section 125 Cr. P. C. should be stayed.
(3) MR. Pradip Kr. Roy, learned advocate appearing for the O. P. No. 1 contended that there is no bar to file section 125 Cr. P. C. application during pendency of the matrimonial suit. Provisions of section 125 of Cr. P. C. was created for a different purpose and aim behind it was social justice so that neglected and deserted wives get some maintenance amount expeditiously from their husbands. Both the proceedings of section 125 Cr. P. C. and section 24 of h. M. Act are different. The settled principle is that the amount granted by civil Court under section 24 of the H. M. Act and the amount of maintenance granted by Magistrate under section 125 of Cr. P. C. should be adjusted. Therefore, there is no merit in the application and it should be dismissed.
(4) I have carefully considered the submissions made by the learned advocates of the parties and perused the application and annexures thereto. It appears from the averments of the petition that the petitioner and the O. P. No. 1 were married on 28. 1. 1993 and out of their wedlock a male child was born to them in november, 1993 and thereafter a female child was born on September 30,1996. Thereafter, relation between them deteriorated and the petitioner filed a matrimonial suit being MAT Suit No. 177 of 2001 in the learned Family Court at Calcutta praying for judicial separation. The O. P. No. 1 entering appearance in the MAT Suit filed an application under section 24 of the H. M. Act claiming alimony pendente lite. After exchange of affidavits the proceeding under section 24 of H. M. Act application was in progress and evidence of the wife was completed on 24. 7. 2003. On 8. 8. 2003 the O. P. No. 1 filed an application under section 125 of the Cr. P. C. claiming maintenance @ Rs. 10,000/- per month for herself and a sum of Rs. 10,000/- per month for the maintenance of two children and Rs. 10,000/- per month as litigation cost. The O. P. No. 1 has also claimed interim maintenance @ Rs. 6,000/- per month for herself and Rs. 6,000/- for her two children. The application under section 125 Cr. P. C. has been registered as Misc. Case No. 159 of 2003 and this petitioner as O. P. No. 1 has entered appearance in the said proceeding. He filed a petition on 2. 9. 2003 praying for dismissal of the section 125 Cr. P. C. application and the learned Judge by his order dated September 3, 2003 rejected the said application and hence this revisional application.
(5) AFTER considering the respective cases of the parties and provisions of law i am of opinion that there is no bar for the wife to file an application under section 125 Cr. P. C. during pendency of matrimonial suit and pendency of section 24 of H. M. Act application in the matrimonial suit. Section 125 of Cr. P. C. was enacted aiming towards social justice so that wives who are neglected and deserted by their husbands get maintenance quickly in order to earn their livelihood and can maintain their children. Provisions of section 125 of Cr. P. C. though quasi-civil in nature but, it is completely a separate proceeding and it cannot be stayed during pendency of the matrimonial suit and application in the suit by the wife claiming alimony pendente lite.
(6) IN Captain Ramesh Chander Kaushal vs. Veena Kaushal and Ors. , reported in AIR 1978 SC 1807, the Supreme Court observed that "broadly stated and as an abstract proposition, it is valid to assert, that a final determination of a civil right by a Civil Court must prevail against a like decision by a Criminal Court. But this principle has no application to a case where pending proceedings under section 125 Cr. P. C. , a Civil Court passed an interim order of maintenance of the wife in proceedings for divorce by the husband. The reasons are (1) the direction by the Civil Court is not a final determination under the Hindu adoptions and Maintenance Act but an order pendente lite under section 24 of hindu Marriage Act and (2) the amount does not include the claim for maintenance of the children although the order does advert to the fact that the wife had their custody. The Magistrate was not in error in ignoring the Civil court's order and had jurisdiction to award a higher maintenance for the wife and children. " It was further observed by the Supreme Court that section 125 cr. P. C. is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15 (3) reinforced by Article 39.
(7) IN Sudeep Chawdhary vs. Radha Chawdhary, reported in 1999 Cr. LJ 466 (SC), a similar situation arose where the wife obtained maintenance order under section 125 of Cr. P. C. and she also obtained alimony order under the h. M. Act. The matter went up to the Supreme Court and the Supreme Court held that "the amount awarded under section 125 of Cr. P. C. was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. "
(8) IN Captain Ramesh Chander's case (supra) the Supreme Court observed that a wife's claim for maintenance under the definition contained in the explanation (b) to section 125 of the Cr. P. C. continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance.
(9) ALIMONY pendente lite under section 24 of the H. M. Act may not remain in existence after the disposal of the matrimonial suit and the wife have to seek remedy for permanent alimony in a different proceedings. Scope of maintenance under section 125 Cr. P. C. is completely different and to some extent wider than section 24 of H. M. Act and being so the wife cannot be restrained from proceeding with section 125 Cr. P. C. application during pendency of application for maintenance pendente lite in matrimonial suit. She even can claim interim maintenance in a proceeding under section 125 Cr. P. C. in view of the decision of the Supreme Court in Savitri vs. Govind Singh Rawat, reported in AIR 1986 sc 984 : 1986 Cr. LJ 41.
(10) THE above discussion of principle of law as enunciated by the Apex Court of India makes it clear that a wife's claim for maintenance under section 125 of cr. P. C. cannot
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be defeated due to her filing a claim for alimony pendente lite in matrimonial suit under section 24 of the H. M. Act. That being the position, the learned Judge of Family Court was right in rejecting the prayer of the husband to stay the proceeding of section 125 Cr. P. C. (11) IN view of the discussion made above it is clear that the order passed by the learned Judge, Family Court dated 3. 9. 2003 was not improper, illegal and incorrect. The impugned order passed by the learned Judge requires no interference at all. The revisional application, therefore, having no merit, is dismissed and disposed of. (12) SEND a copy of the judgment to the learned Judge, Family Court, Calcutta for information and necessary action. (13) URGENT xerox certified copy be given to the parties, if applied for, expeditiously. Revisional application dismissed.