Biraj Saikia vs The State Of Assam And Anr
2024 Latest Caselaw 8547 Gua

Gauhati High Court

Biraj Saikia vs The State Of Assam And Anr on 21 November, 2024

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GAHC010245592024




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Pet./1401/2024

            BIRAJ SAIKIA
            S/O BIREN KUMAR SAIKIA, RESIDENT OF JAYANAGAR, SIVASAGAR
            DISTRICT, ASSAM 785640



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP ASSAM

            2:SMTI RASHMI GOGOI SAIKIA
            W/O BIRAJ SAIKIA

            RESIDENT OF SONARI PABATIPUR
            SONARI
            DIST SIVASAGAR
            ASSAM 78569

Advocate for the Petitioner   : MR. S SAHU, MR N BARUAH

Advocate for the Respondent : PP, ASSAM,
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                        BEFORE
         HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                     ORDER

Date : 21.11.2024

Heard Mr. S. Sahu, learned counsel for the petitioner. Also heard Mr. R. Baishya, learned Additional Public Prosecutor for the State respondent.

This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, praying for setting aside and quashing of the Order dated 12.06.2024, passed in Petition No. 665/2024, filed in Misc. Case No. 11/2015 by the learned Court of the Sub-Divisional Magistrate (Sadar), Sivasagar, whereby, the petitioner was directed to pay an amount of Rs. 1,64,000/- (Rupees one lakh sixty-four thousand) only to respondent No. 2 as arrears of maintenance, and a distress warrant was issued against him.

Issue notice to the respondents, returnable within 4 (four) weeks.

Since Mr. Baishya, learned Additional Public Prosecutor, Assam, has entered appearance and accepted notice on behalf of the State respondent No. 1, no formal notice is required to be issued to the said respondent. However, he shall be furnished with the requisite extra-copy of the petition during the course of the day.

The learned counsel for the petitioner shall take steps for service of notice on respondent No. 2 by registered post with A/D as well as by usual process within a week from today.

Let the scanned copy of the LCR be called for.

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It is submitted by the learned counsel for the petitioner, Mr. Sahu, that the present petitioner had instituted a suit, T.S. (M) Case No. 113/2014, before the learned District Judge for dissolution of marriage, which was ultimately disposed of by the judgment dated 27.09.2019, and the order of decree was passed on 04.10.2019 in the said case. The permanent alimony to respondent No. 2 was determined at Rs. 2,05,000/- (Rupees two lakh five thousand) only, to be paid by the petitioner to respondent No. 2. Thereafter, respondent No. 2 filed a Money Executive Case No. 01/2021, for the realization of the permanent alimony, which was disposed of by order dated 13.02.2023, after the decree for permanent alimony was satisfied. Following this, the petitioner was advised that he need not pay any further amount to respondent No. 2, as the decretal amount had been satisfied.

However, on 12.06.2024, respondent No. 2 filed a petition, being Petition No. 665/2024 in Misc. Case No. 11/2015, claiming an arrear amount of Rs. 1,64,000/- (Rupees one lakh sixty-four thousand) only towards arrears of maintenance. The learned trial court allowed the prayer and directed the present petitioner to pay the arrear amount of Rs. 1,64,000/- (Rupees one lakh sixty-four thousand) only, as claimed by respondent No. 2, and issued a distress warrant against the petitioner. In this regard, the learned counsel for the petitioner has submitted that, as per the proviso to Section 144(3) of the BNSS (corresponding to the proviso to Section 125(3) of Cr.P.C.), the respondent No. 2 cannot issue a warrant for recovery of arrears of maintenance beyond one year from the date the amount became due, as there is a bar on issuing such a warrant.

Thus, at this stage, Mr. Sahu, learned counsel for the petitioner prays for a stay of the order dated 12.06.2024 and the distress warrant issued against the Page No.# 4/4

present petitioner until the disposal of the instant petition.

Considering the submissions made by the learned counsel for the petitioner, the order dated 12.06.2024 and the distress warrant issued against the petitioner is hereby stayed until the next date of listing. Further, the petitioner is hereby directed to pay Rs. 50,000/- (Rupees fifty thousand) only to the respondent No. 2 towards the arrear maintenance, out of the Rs. 1,64,000/- (Rupees one lakh sixty-four thousand) directed to be paid by the learned trial court.

List the matter after 4(four) weeks.

JUDGE

Comparing Assistant