Calcutta High Court (Appellete Side)
Sri Patit Paban Dinda vs Srimati Krishna Dinda & Anr on 11 August, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3810 of 2019
Sri Patit Paban Dinda
Vs.
Srimati Krishna Dinda & Anr.
For the petitioner : Mr. Bibek Jyoti Basu,
Mr. Uttam Kumar De,
Ms. Ankita Mukherjee.
For the Opposite Party No.1 : Mr. Amal Krishna Samanta.
For the State : Ms. Puspita Saha.
Heard on : 19.07.2023
Judgment on : 11.08.2023
Shampa Dutt (Paul), J.:
1.
The present revision has been preferred against an order of the
learned Session Judge in Criminal Revision No.79 of 2018 vide which the
interim order of maintenance dated 08.05.2018 passed by the learned
Judicial Magistrate, 3rd Court, Tamluk, Purba Medinipur in Misc. Case
No.21 of 2017 to the petitioner's wife and her minor daughter to the tune of
Rs.3,000/- each, total Rs.6,000/- was affirmed.
2. From the order of learned Magistrate it appears that in this case the
marriage is admitted and the paternity of the children has also been
admitted by the opposite party. After marriage the petitioner went to her
matrimonial home. Three children were born out of the said wedlock. The
petitioner was being tortured both mentally and physically and ultimately
was driven out from her matrimonial home. The opposite party did not take
any information about the welfare of the petitioner nor send her any
maintenance and the petitioner has got no source of income. The opposite
party is employed in the office of BL & LRO, Nandigram and earns
Rs.35,000/- per month and has also got landed properties, from there earns
Rs.5,000/- per month and over all earns Rs.40,000/- per month and hence
the petitioner has claimed interim maintenance to the tune of Rs.10,000/-
per month for herself and a further sum of Rs.5,000/- each for son and
daughter and in all Rs.20,000/- per month from the opposite party.
3. The petitioner/husband/opposite party raised objection and
submitted that the wife will not get any interim maintenance for herself, as
she left her matrimonial home voluntarily and the opposite party is willing
to take back the petitioner and also their children. The opposite party
further submitted that the petitioner by making dolls earns Rs.30,000/- per
month and has further submitted that the son of the petitioner will not
get any maintenance as the son is now a major.
4. Admittedly the daughter was a minor on the date of order.
5. The opposite party/wife could not be served in spite of this
Court's best efforts.
6. The petitioner has relied upon the judgment of the Supreme Court in
Abhilasha vs. Parkash & Ors. reported in (2021) 13 SCC 99.
7. The interim order of maintenance has been granted from date of
order. The case is pending for final disposal.
8. The Supreme Court in Rajnesh vs. Neha, Criminal Appeal No. 730
of 2020 (arising out of SLP (Crl.) No. 9503 of 2018), on 04.11.2020,
held:-
"VI Final Directions
In view of the foregoing discussion as
contained in Part B - I to V of this judgment,
we deem it appropriate to pass the following
directions in exercise of our powers under
Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping
jurisdiction, and avoid conflicting orders being
passed in different proceedings, it has become
necessary to issue directions in this regard, so
that there is uniformity in the practice followed
by the Family Courts/District
Courts/Magistrate Courts throughout the
country. We direct that:
(i) where successive claims for
maintenance are made by a party under
different statutes, the Court would
consider an adjustment or setoff, of the
amount awarded in the previous
proceeding/s, while determining
whether any further amount is to be
awarded in the subsequent proceeding;
(ii) it is made mandatory for the
applicant to disclose the previous
proceeding and the orders passed
therein, in the subsequent proceeding;
(iii) if the order passed in the previous
proceeding/s requires any modification
or variation, it would be required to be
done in the same proceeding.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and
Liabilities annexed as Enclosures I, II and III of
this judgment, as may be applicable, shall be
filed by both parties in all maintenance
proceedings, including pending proceedings
before the concerned Family Court / District
Court / Magistrates Court, as the case may be,
throughout the country.
(c) Criteria for determining the quantum of
maintenance
For determining the quantum of maintenance
payable to an applicant, the Court shall take
into account the criteria enumerated in Part B -
III of the judgment.
The aforesaid factors are however not
exhaustive, and the concerned Court may
exercise its discretion to consider any other
factor/s which may be necessary or of
relevance in the facts and circumstances of a
case.
(d) Date from which maintenance is to be
awarded
We make it clear that maintenance in all
cases will be awarded from the date of filing
the application for maintenance, as held in Part
B - IV above.
(e) Enforcement / Execution of orders of
maintenance
For enforcement / execution of orders of
maintenance, it is directed that an order or
decree of maintenance may be enforced under
Section 28A of the Hindu Marriage Act, 1956;
Section 20(6) of the D.V. Act; and Section 128
of Cr.P.C., as may be applicable. The order of
maintenance may be enforced as a money
decree of a civil court as per the provisions of
the CPC, more particularly Sections 51, 55, 58,
60 r.w. Order XXI."
9. The order under revision being in accordance with law and the
quantum of interim maintenance being bare minimum, this court finds no
reason to interfere at this stage.
10. The petitioner is at liberty to pray for necessary modification
before the learned Magistrate as per the relevant provision of law.
11. The learned Magistrate shall take into consideration all aspects at the
time of final hearing and dispose of the case as per the guidelines in
Rajnesh vs. Neha (Supra) and also the judgment in Abhilasha vs.
Parkash & Ors. (Supra) and make all effort to dispose of the case finally as
expeditiously as possible.
12. The revisional application being CRR 3810 of 2019 is dismissed.
13. All connected applications, if any, stands disposed of.
14. Interim order, if any, stands vacated.
15. Copy of this judgment be sent to the learned Trial Court forthwith for
necessary compliance.
16. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
