Sri Pijush Bhattacharjee vs Smt. Rupa Bhattacharjee
2023 Latest Caselaw 5782 Cal

 D/L10
31.08.2023

Bpg.

C.R.R.2956 of 2023

In Re: An application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973;

Sri Pijush Bhattacharjee Versus Smt. Rupa Bhattacharjee

Mr. Biswajit Manna Mr. Soumya Basu Roy Chowdhury.

...for the petitioner.

Supplementary affidavit filed by the petitioner be kept

with the record.

Petitioner is aggrieved by the order dated 06.07.2023

wherein in Misc. Exe. Case No.58 of 2022 learned Judicial

Magistrate, 3rd Court, Serampore, Hooghly observed that "even if the

OP is paying alimony in any Mat suit, he cannot adjust such money

with the maintenance amount passed in Misc. Case No.136 of

2013." This observation of the learned Magistrate is against the

spirit of the judgment of the Hon'ble Supreme Court reported in

(2021) 2 SCC 324 (Rajnesh Vs. Neha & Another) wherein it has been

categorically observed that the wife is entitled to maintenance under

different statute but will be able to get maintenance after

adjustment only in respect of a single case (wherein the amount is

highest). The rest of the amount would be deemed to be adjusted so

far as the orders which are passed in other proceedings.

In view of the observations of the Hon'ble Supreme Court,

I am of the view that if the petitioner presents the accounts in

respect of the payment which has been made till date, the learned

trial court will insist only if there is an extra amount due and pass

directions for depositing the same. Learned Magistrate will not

insist on double payment in respect of both the cases.

Petitioner is granted 15 days' time to place the records of

all the payments made in Mat Suit No.238 of 2013. The learned

Magistrate will check the records so far as the payments which have

been made in connection with Misc. Case No.136 of 2013 or any

execution case relating to the said case. Learned Magistrate will

thereafter arrive at his conclusion whether any amount is due as

arrears or whether any amount has been paid in excess.

Accordingly, learned Magistrate will proceed in accordance with law

by way of passing necessary orders. Till such steps are exhausted

by the learned Magistrate, any distress warrant/warrant of arrest

should not be issued so far as the present petitioner is concerned.

With the aforesaid observations, CRR 2956 of 2023 is

disposed of.

Pending application, if any, is consequently disposed of.

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

downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance of all requisite

formalities.

(Tirthankar Ghosh, J.)