Calcutta High Court (Appellete Side)
Smt. Sweta Anand & Anr vs Dr. Niraj Kumar & Anr on 16 May, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present: - Hon'ble Mr. Justice Subhendu Samanta
C.R.R. No. - 3560 of 2017
IN THE MATTER OF :
Smt. Sweta Anand & Anr.
Vs.
Dr. Niraj Kumar & Anr.
For the petitioner : Mr. Omar Faruk Bazi, Adv.,
Judgment on : 16 .05.2023
Subhendu Samanta, J.
The instant criminal revision has been preferred against the
order dated 5th August, 2017 passed by the learned Judicial
Magistrate, 5th Court at Barackpore, 24-Parganas (North); in Misc.
Case No. 173 of 2016.
The brief fact of the case is that the present petitioner No. 1 is
the married wife of opposite party and petitioner No. 2 is the minor
son. An application under Section 125 CrPC was filed by the
petitioners for getting maintenance against the opposite party before
the learned Magistrate. The learned Magistrate after hearing the
present petitioners as well as after receiving the written objection on
behalf of the opposite party passed the impugned order on 05.08.2017
Hence this instant revision.
It appears that learned Magistrate has passed the impugned
order of interim maintenance under Section 125 CrPC.
Learned advocate for the petitioners submits that the impugned
order passed by the learned Magistrate suffers illegality. Learned
Magistrate has failed to consider the facts and circumstances of this
case and came to an erroneous finding. The opposite party is earning
more than Rs.7,00,000/-p.m. The application under Section 125 CrPC
was filed for getting maintenance of Rs. 1,00,000/- p.m. i.e. Rs.
70,000/- for the petitioner No. 1 and Rs. 30,000/- for petitioner No. 2.
The learned Magistrate did not consider the prayer of the petitioners
and pass the impugned order.
Heard the learned advocate. Perused the impugned order passed
by the learned Magistrate, it appears that the learned Magistrate has
passed the interim maintenance in favour of the petitioners
amounting to Rs. 6,000/- per month (Rs. 3,000/- each) from the date
of the impugned order. It further appears that during the hearing the
petitioners claimed that OP was earning Rs. 90,446/-per month
which was denied by the opposite party. However, the parties are
residing separately so the learned Magistrate passed the impugned
order.
On perusal of the impugned order, I find there is no illegality in
passing the impugned order. The impugned order was passed which is
interim maintenance; the matter of maintenance has to be decided
carefully at the later stage after receiving evidence from both the
parties. However, learned Magistrate has committed error for awarding
the interim maintenance from the date of the impugned order. It is
dictated of the law that the order of maintenance should be passed
from the date of application if does not otherwise prove. Hon'ble
Supreme Court in Rajnesh Vs. Neha also dictated that the order of
maintenance should be ordered to be paid from the date of
application.
Considering the same, I find no illegality or impropriety in the
impugned order except the observation made above. Accordingly, the
impugned order passed by the learned Magistrate is hereby modified
to that effect that the impugned order shall take effect from the date of
filling of the application.
Learned magistrate is directed to dispose of the Misc. Case as
early as possible after awarding opportunities to both the parties to
produce their evidences.
Learned Magistrate shall dispose of the Misc. Case according to
the direction given by the Hon'ble Apex Court in Rajnesh Vs. Neha.
In view of the above observations, the CRR No. 3560 of 2017 is
disposed of.
Any order of stay passed by this court during the continuation
of the instant criminal revision is also vacated.
Parties to act upon the server copy and urgent certified copy of
the judgment be received from the concerned Dept. on usual terms
and conditions.
(Subhendu Samanta, J.)
