Sutapa Pal vs The State Of West Bengal & Anr
2022 Latest Caselaw 8263 Cal

13.12. 2022
item No.18
n.b.
ct. no. 551                   CRR 1129 of 2018
                                    With
                          IA No. CRAN 2 of 2022

                                Sutapa Pal
                                    Vs.
                         The State of West Bengal & Anr.
                                    With
                           CRR 1726 of 2018
                             Amar Kumar Pal
                                    Vs.
                         State of West Bengal & Anr.


                    Mr. Srinjoy Sengupta,
              ... for the petitioner in CRR 1726 of 2018.

              Mr. Subrata Karmakar,
              .... For the petitioner in CRR 1129 of 2018.

                    Mr. Srinjoy Sengupta,
              ... for the opposite party in CRR 1129 of 2018
                    .

Mr. Narayan Prasad Agarwal, Mr. Pratick Bose, .....for the State.

Both the husband and wife have challenged the order of a

Magistrate passed in a proceeding under Section 127 of the Code of

Criminal Procedure.

Wife filed the revisional application on the ground of

inadequacy and the husband on the ground of impropriety.

The brief fact of the case is that by virtue of an order of

maintenance passed by a jurisdictional Magistrate under Section

125 of the Code of Criminal Procedure, husband was directed to

pay Rs.1500/- per month to the wife. Thereafter, wife filed one

application under Section 127 of the Code of Criminal Procedure for

enhancement of the maintenance amount. Learned Magistrate by

passing the impugned order enhance the monthly maintenance to

Rs.14,000/- per month.

Learned advocate appearing on behalf of the wife submits

that the husband is earning more than Rs.65,000/- per month. He

has some other source of income. The award of maintenance is not

commensurate with the present income of the husband. The

monthly maintenance of Rs.14,000/- is not sufficient.

Learned advocate on behalf of the husband submits that

the wife has other independent income. He also submitted that the

husband is now paying Rs.17,000/- per month to the wife by virtue

of an order passed by a Court of competent jurisdiction in another

proceeding.

Learned advocate for the wife pressed hard that though

amount of maintenance was given by the husband but the husband

is not complying with the order of Learned Magistrate. Nothing was

paid in furtherance to the order passed by the Magistrate.

Learned advocate for the husband submitted before this

Court that the husband is actually paying more monthly

maintenance than is ordered by the Magistrate in the proceeding

under Section 127 of the Code of Criminal Procedure.

During argument learned advocate for the husband cited a

decision of Hon'ble Supreme Court passed in Rajnesh Vs. Neha &

Anr. reported in (2021)2 SCC 324. He placed his reliance at para

60 and para 61 of the said judgment and submitted that the wife

did not disclose the fact of early order of maintenance before the

learned Magistrate.

Learned advocate for the wife also cited some decisions of

Hon'ble Supreme Court in Kalyan Dey Chowdhury Vs. Rita Dey

Chowdhury nee Nandy passed in Session Appeal No.5369 of

2017, Vinny Parmvir Parmar Vs. Parmvir Parmar in Civil Appeal

no. 5831-5833 of 2011 and Rajnesh Vs. Neha & Anr(supra).

The guideline formulated by the Hon'ble Supreme Court in

Rajnesh Vs. Neha & Anr. is well accepted. During the course of

argument both learned advocates for the parties admitted that the

guideline of the Hon'ble Supreme Court in Rajnesh Vs. Neha's case

was not followed by the parties during the proceeding before the

learned Magistrate. Both of them are in concensious of the fact

that if the matter is remanded back they shall take proper steps

before the Magistrate by virtue of directions of Hon'ble Supreme

Court in Rajnesh Vs. Neha's case.

Considering the submission of the parties the instant

revisional applications are disposed of with a direction that the

matter is hereby remanded back to the learned Magistrate for

determination afresh.

Learned Magistrate shall allow the parties to file "Affidavit

of Disclosure of Assets and Liabilities" and shall dispose of the

same according to the guideline of the Hon'ble Supreme Court

passed in Rajnesh Vs. Neha.

Further, learned Magistrate shall also consider the "issue

of over lapping jurisdiction" as guided by the Hon'ble Supreme

Court(supra).

I make it clear that this Court has not entered into the

merit of this matter and it is open to the learned Magistrate to

decide the matter afresh without being influenced by any of the

finding of this Court.

Thus, the instant revisional criminal application is

disposed of.

Any order of stay passed by this Court during the

proceeding of the revisional is also vacated.

Connected CRAN applications, if any, is also disposed of.

Let the copy of this order be served upon the learned

Magistrate for his information and necessary action with a direction

to dispose of the same as early as possible, more preferably within

six months from the date of receipt of the order.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

( Subhendu Samanta, J.)