Mrinmoy Khamaru vs Suyata Khamaru
2023 Latest Caselaw 2090 Cal

Form J(1)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Revisional Jurisdiction
                              Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri

                        C.R.R. 3672 of 2022
                         Mrinmoy Khamaru
                                Vs.
                         Suyata Khamaru.

For the petitioner      : Mr. Sachit Talukdar, Adv.

Heard on                : 29.03.2023

Judgment On             : 29.03.2023.

Bibek Chaudhuri, J.

Order dated 24th August, 2022 passed by the learned Additional

Sessions Judge, Fast Track, 2nd Court, Hooghly in connection with

Criminal Motion No.62 of 2022 thereby upholding the order dated 26 th

April, 2022 passed by the learned Judicial Magistrate, 5 th Court,

Hooghly in connection with MC Case No.259 of 2020 wherein the

petitioner was directed to pay a sum of Rs.4,000/- per month as

interim maintenance towards his minor daughter from the date of

application is under challenge at the instance of the petitioner/father

of the child.

It is not in dispute that the petitioner and the opposite party are

mutually separated. In their wedlock, a girl child was born who is

now aged about 7 years. The petitioner filed an application under the

Guardians and Wards Act in the year 2020 which was registered as

Act VIII Case No.03 of 2020 and vide order dated 8 th June, 2020 the

said Misc. Case under the Guardians and Wards Act was allowed ex-

parte directing the opposite party/wife/mother to hand over custody

of the child in favour of the petitioner/father without any delay, failing

which petitioner will be at liberty to execute this order.

It is submitted by the learned Advocate for the petitioner while

assailing the order impugned that in spite of the direction being

passed in the proceeding under the Guardians and Wards Act

directing the opposite party to give custody of the child in favour of

the petitioner, the opposite party/mother has not handed over the

custody of the said child to her father. The father has filed an

execution proceeding.

It is contended on behalf of the petitioner that as soon as a final

order under the Guardians and Wards Act is passed, the petitioner is

not under legal obligation to pay any maintenance for the child till the

child is handed over to the custody of the father.

In support of his contention, he refers to a decision of a

Coordinate Bench of this Court reported in 2005(3) CHN 534:-

Sushil Mondal Vs. Shibdas Patra @ Shibu Vs. Shibdas Patra @

Shibu.

The factual aspect of the above-mentioned report is little

different from the facts of this case. Factual aspect of the case is that

the grandfather filed an application under Section 125 of the Code of

Criminal Procedure praying for maintenance for that grand child who

was staying under his custody after the death of her mother.

Simultaneously, the father of the child filed an application praying for

custody of the child under the Guardians and Wards Act. During the

pendency of Misc. Case under Guardians and Wards Act, the Court

below passed an order of maintenance. This order was challenged by

the petitioner/father.

A Co-ordinate Bench observed as hereunder:-

"A father cannot refuse to maintain his child simply on the logic

that he has filed an application in Civil Court praying for custody of

his child. If the father wants custody of the child, he must enforce

his right in a Civil Court and so long the Civil Court does not give any

finding regarding custody of the child, the father cannot refuse

maintenance for the child."

It is submitted by the learned Advocate for the petitioner that in

the instant case, the learned District Judge, Hooghly passed final

order of custody of the child in favour of the petitioner. Therefore,

accepting the ratio of the above-mentioned report, the father is no

more under obligation to pay maintenance for his minor child.

My reading of Paragraph 7 of the above-mentioned report is

different from the reading of the learned Advocate for the petitioner.

What is stated in Sushil Mondal (supra) is that a father cannot refuse

to maintain his child so long he is under the custody of another

person.

In the instant case, an ex-parte order was passed directing the

opposite party to hand over the child. The opposite party being the

mother refused to carry out the said order and the said order is put

into execution. The execution case is in progress. At this stage the

father is under obligation to pay maintenance for the development,

education and other bare needs of the child.

In view of such circumstances, I do not find any merit in the

instant revision.

Accordingly, the instant revision is dismissed.

(Bibek Chaudhuri, J.)

Mithun De/ A.R. (Ct).

Sl No.09.

D/L.