Calcutta High Court (Appellete Side)

Shri Siddhartha Dechowdhury vs Smt. Debashree Dey Chowdhury ... on 13 March, 2023

                     IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                             CRR 3543 of 2019

                       Shri Siddhartha Dechowdhury

                                    Vs

              Smt. Debashree Dey Chowdhury (Saha) & Anr.




For the Petitioner            : Mr. Anjan Ray,
                                Mr. Subhajit Choudhury.



For the Opposite Party       : Mr. Danish Taslim,
                               Mr. A.K. Bhattacharrya.




Heard on                     : 13.02.2023

Judgment on                  : 13.03.2023
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Shampa Dutt (Paul), J.:



        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
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                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
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              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 of maintenance allowance @Rs.20,000/- per mensem in this case is just, fair and reasonable."

It is stated that the learned Judge has failed to appreciate that

the Opposite Party No.1, being the wife of the petitioner is a highly

educationally qualified woman and she was already working as part

time lecturer in college and now she is also receiving stipend for her

research work from the Kalyani University and for this reason she is not

entitled to benefits Under Section 125 of the Code of Criminal

Procedure, 1973.

The Learned Judge has failed to appreciate that the Opposite

Party No.1 being the wife of the petitioner voluntarily left her

matrimonial home without just and reasonable cause and for this

reason she is not entitled any benefits Under Section 125 of the Code of

Criminal Procedure.

Mr. Anjan Ray, learned counsel for the petitioner has

submitted that the Learned Judge has failed to appreciate that Opposite

Party No.2 being the wife of the petitioner was already receiving monthly

maintenance from the petitioner/husband in a proceeding Under

Section 24 of the Hindu Marriage Act which is just, fair and reasonable

and the petitioner submits that his wife is not entitled any further

maintenance amount under any other proceedings.

Mr. Danish Taslim, learned counsel for the opposite party

has submitted that the petitioner herein/husband does not pay any

maintenance to the wife/opposite party. His income is Rs.56,000/- as

stated in the application under section 125 of CRPC. Though the

magistrate has held it to be Rs.75,000 per month, her prayer in the

petition was Rs.20,000/- per month as maintenance and Rs.25,000/-

as litigation cost which was not considered. As such the revision is

liable to be dismissed.

The petitioner/husband in his objection before the magistrate

submitted that the opposite party gets a stipend of Rs.8000/-.

Admittedly the husband has been directed to pay maintenance

of Rs.15,000/- and cost of Rs.20,000/- as litigation cost in a

proceedings Under Section 24 of the Hindu Marriage Act (matter not

before this Court).

The Learned Magistrate considering all these facts dismissed the

application under Section 125 Cr.P.C.

The Session Judge set aside the judgment of the Magistrate and

granted a sum of Rs.20,000/- Per month as maintenance in addition

to the amount of maintenance @ Rs. 15,000 per month in the

proceeding under Section 24 of the Hindu Marriage Act.

Hence the revision.

The Supreme Court in Rajnesh vs Neha & Anr., Criminal

Appeal No. 730 of 2020, on 04.11.2020, held:-

Directions on overlapping jurisdictions

"It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to

disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding."

The wife admittedly being a research student gets a

reasonable stipend. Further she has been granted monthly

maintenance of Rs.15,000/- in the Divorce Proceedings. Thus the

view of the learned Additional Session Judge, 2nd Fast Track Court,

Berhampore, District-Murshidabad in order dated 12.10.2018 in

Criminal Revision Case No. 277 of 2016. "The information about

the award of rupees 15,000 as alimony pendente lite per month by

the learned Matrimonial Court is an extraneous matter" is not

correct and against view of the Supreme Court and also the

principle of natural justice which applies to both sides equally.

Thus taking into consideration all these facts, it is seen that the

findings of the Session Judge under revision and the observation