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wife earning 74000 NOT entitled to maintenance though NRI husband earns 75 lakhs p.a. Cal HC Classic !!

wife earning 74000 NOT entitled to maintenance though NRI husband earns 75 lakhs p.a. Cal HC Classic

Brief facts / bloggers notes

  • Husband files for divorce on grounds of cruelty
  • As always wife seeks $$$ moolaaah !!
  • Lower court notes that wife is gainfully employed and is NOT entitled to maintenance
  • however some 30,000 lawyers fee granted (though not stated, please note that lawyer fee is ONE TIME ONLY.
  • Wife goes on appeal to CALCUTTA HC
  • HC rightly observes that interim maintenance / alimony is for temporary reprieve till final orders are passed and a woman earning approx 74 K is NOT entitled to further maintenance
  • Special marriage act case
  • However , IMHO the dictum / logic should apply to other cases also !!

////////////9. The object of Section 36 of the Special Marriage Act, 1954 is to provide a temporary financial support pending any action under Chapter V or VI of the said Act to the wife who has no independent income sufficient to maintain herself. The present income of the wife/petitioner as it appears from her aforementioned salary certificates is not less than Rs. 74,000/- per month which is sufficient for her support particularly when she herself has assessed her requirement at Rs. 50,000/- in the application for alimony pendente lite.

The learned trial Judge in the order impugned has considered the requirement of the wife/petitioner vis-à-vis her income and is absolutely justified in refusing the prayer of the wife/petitioner for alimony pendente lite. The order impugned, therefore, does not call for any interference.////////////

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Calcutta High Court (Appellete Side)

Somdatta Chatterjee Nee … vs Anindya Chatterjee on 11 June, 2019

Form No. J (2)

IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Biswajit Basu

C.O. No. 1972 Of 2016
(Assigned)

Somdatta Chatterjee nee Raychaudhuri
versus
Anindya Chatterjee

For Petitioner : Mr. Probal Kr. Mukherjee, Sr. Adv.,
Mr. Sukanta Chakraborty,
Mr. Anindya Halder

For Opposite Party : Mr. Kallol Basu,
Mr. Tanoy Chakraborty,
Mr. Chhandak Dutta

Heard on : 11.06.2019.

Judgment On : 11.06.2019.

Biswajit Basu, J.

  1. The revisional application under Article 227 of the Constitution of India is directed against Order No. 17 dated March 18, 2016 passed by the learned Additional District Judge, 11th Court, Alipore, District 24 Parganas (South) in Miscellaneous Case No. 27 of 2015 arising out of Matrimonial Suit No. 31 of 2015.
  2. The husband/opposite party filed the connected matrimonial suit seeking dissolution of his marriage with the wife/petitioner by a decree of divorce, inter alia, on the grounds of cruelty.
  3. The wife in the said suit filed an application under Section 36 of the Special Marriage Act, 1954 praying alimony pendente lite at the rate of Rs. 50,000/- per month. The said application of the wife/petitioner was registered before the learned trial Judge as Misc. Case No. 27 of 2015.
  4. The learned trial Judge by the order impugned has disposed of the said Misc. Case thereby refused to grant any alimony pendente lite to the wife/petitioner on the ground that she has sufficient independent income to support herself. However, the learned trial Judge by the said order has awarded a sum of Rs. 30,000/- to the wife petitioner on account of litigation expenses.
  5. The grievance of the wife/petitioner is that the learned trial Judge while refusing her prayer for alimony has failed to appreciate that the husband is working in all reputed organizations in USA and is earning 1,20,000 USD per annum which in Indian currency is Rs. 75,00,000/- per annum and she is entitled to maintenance proportionate to the said income of the husband as her income is much less than her requirement and entitlement.
  6. The wife/petitioner in the application for alimony pendente lite has disclosed her income from salary at Rs. 48,000/- per month. She in the said application at paragraph 14 stated her requirement with break up. The said paragraph 14 of the application under Section 36 of the Special Marriage Act, 1954 is quoted below: “14. That the petitioner states that to maintain herself as per the status of the respondent the petitioner needs a sum of Rs. 50,000/- per month in following heads : Rs. 10,000/- as household maintenance and other utilities Rs. 4000/- as pocket allowance and Rs. 22,000/- for goods, groceries, clothes and other daily needs and Rs. 14,000/- legal expenses.”
  7. The wife/petitioner, therefore, has assessed her requirement to maintain herself as per the status of the husband/opposite party at Rs. 50,000/- per month. She has admitted that as on the date of filing of the said application her earning was Rs. 48,000/- per month as such her income on the date of filing of the said application for alimony pendente lite was sufficient for her support.
  8. The wife/petitioner on cross-examination has admitted that house rent allowances of Rs. 14,133/- and transport allowances of Rs. 3534/- are being reimbursed by her employer. Therefore, the wife/petitioner by virtue of her employment is receiving money from her employer on some of the heads on which her prayer for alimony pendente lite is founded.
  9. In terms of the direction passed by this Court the wife/petitioner has produced her salary certificate for the months of December 2018, January 2019 and March 2019. On perusal of the said salary certificates it appears that the wife/petitioner on account of her salary in the month of December 2018 and January 2019 had received salary of Rs. 74,624/- and in the month of March 2019 she had received a sum of Rs. 81,219/-.
  10. The object of Section 36 of the Special Marriage Act, 1954 is to provide a temporary financial support pending any action under Chapter V or VI of the said Act to the wife who has no independent income sufficient to maintain herself. The present income of the wife/petitioner as it appears from her aforementioned salary certificates is not less than Rs. 74,000/- per month which is sufficient for her support particularly when she herself has assessed her requirement at Rs. 50,000/- in the application for alimony pendente lite.
  11. The learned trial Judge in the order impugned has considered the requirement of the wife/petitioner vis-à-vis her income and is absolutely justified in refusing the prayer of the wife/petitioner for alimony pendente lite. The order impugned, therefore, does not call for any interference.
  12. C.O. No. 1972 of 2016 is accordingly dismissed. No order as to costs.

Urgent photostat certified copy of this Judgment, if applied for, be given to the parties on usual undertakings.

(Biswajit Basu, J.) SK

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#Cruelty under #Hindu #Marriage Act different from #IPC #498a. Different standards even IF events & parties are same – #CalcuttaHC

/////It is well known that the standard of proof in civil suit as well as in the criminal proceeding, is different from each other. Civil suit is tried on the basis of preponderance of probability. Criminal proceedings are tried on the basis of proof beyond reasonable doubt

….

Thus, it appears that the ‘cruelty’ under the Hindu Marriage Act has a different meaning altogether, than that of the concept of ‘cruelty’ as envisaged in the Indian Penal Code. It necessarily follows that even the act complained of, in the criminal proceeding may not constitute cruelty within the meaning of Section 498A of the Indian Penal Code, but, still such act may constitute a ground of divorce on the ground of cruelty where such acts are so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other. https://twitter.com/ATMwithDick/status/1021387677759832064 ////

 
IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction Appellate Side

Present:

The Hon’ble Justice Jyotirmay Bhattacharya

C.O. No.4462 of 2007

Asok Kumar Pal

-versus-

Smt. Sawan Pal

For the Petitioner : Mr. Sardar Amjad Ali, Ms. Kaberi Ghosh.
For the Opposite : Ms. Chama Mookherji, Parties. Mr. Surojit Roy Chowdhury, Ms. Chandrima Chatterjee.
Judgment On : 11 – 07 – 2008.

Two proceedings are continuing side by side. One of such proceedings which was initiated on the complaint of the wife/opposite party against her husband under Section 498A/406/120B of the Indian Penal Code, is now pending for consideration before the learned 1st Court of Judicial Magistrate at Sealdah. The other proceeding is a suit for divorce which was also filed by the wife/opposite party against her husband on the ground of cruelty under Section 13(I)(ia) of the Hindu Marriage Act. Both the aforesaid proceedings were thus, initiated at the instance of the wife/opposite party. First of such proceedings was the criminal proceeding which was filed by the wife, as aforesaid. The civil suit for divorce was filed subsequently. The allegations constituting ‘cruelty’, on which the criminal proceeding was initiated, are the allegations on which the Civil Suit was also founded. https://twitter.com/ATMwithDick/status/1021387677759832064

There is no disagreement between the parties on the issue that the similar set of facts are the foundation of both the criminal proceeding and the civil suit. Charge has already been framed in the criminal proceeding. Issues have also been framed in the civil suit.

Since the claim and counter-claim of the parties are identical in both the aforesaid proceedings it is not quite unnatural that some of the issues and/or charges in those proceedings will be identical.

Both the criminal proceeding and the civil suit have matured for hearing. The cross-examination of the wife/opposite party is now going on, in the criminal proceeding. In the civil suit the petitioner has already submitted his evidence in chief on affidavit. Cross-examination of the petitioner is yet to be commenced. At this stage the petitioner/husband filed an application under Section 151 of the Code of Civil Procedure in the civil suit inter alia praying for stay of further proceeding of the civil suit till the disposal of the aforesaid criminal proceeding on the ground that if both the proceedings are allowed to be proceeded with simultaneously then there will be embarrassment of trial not only for the parties, but also for the Court. It was alleged by the petitioner in the said application that if the civil suit is allowed to be proceeded with then he will be compelled to disclose his full defence, in the civil suit and such disclosure will affect his defence in the criminal proceeding.

Such application of the petitioner/husband was rejected by the learned Trial Judge primarily on the ground that since the petitioner has already filed written statement in the suit and the issues have already been framed, the petitioner cannot be affected, if the civil suit is allowed to be continued simultaneously with the criminal proceeding. Thus, the learned Trial Judge held that though similar set of facts are involved in both the criminal proceeding as well as in the civil suit but, still then, there is hardly any chance of embarrassment in the trial of both the proceedings simultaneously, as the defence had already been disclosed by the petitioner in the civil suit.

Challenging the propriety of the said order the petitioner/husband has filed the instant application under Article 227 of the Constitution of India before this Court. Mr. Sardar Amzad Ali, learned Senior Advocate appearing for the petitioner relied upon various decisions of the Hon’ble Supreme Court as well as of this Hon’ble Court to show that when the pleadings of the parties are identical in both the criminal proceeding as well as in the civil suit and when there is possibility of embarrassment of trial because of such identity of dispute in the said proceedings, it will be expedient to stay all further proceedings of the civil suit till the disposal of the criminal proceeding. Following are the decisions which were relied upon by Mr. Ali in support of his aforesaid submission:-

  1. In the case of M.S. Sheriff & Anr. -Vs- State of Madras & Ors. reported in AIR 1954 SC 397.
  2. In the case of Kusheshwar Deby -Vs- Bharat Cooking Coak Ltd. & Ors. reported in AIR 1988 SCC 2118.

  3. In the case of Dibakar Das -Vs- Registrar General, Appellate Side, High Court & Anr. reported in (2006)2 CHN 48.

  4. In the case of Captain M. Paul Anthony -Vs- Bharat Gold Mines Ltd. reported in AIR 1999 SC 1416.

  5. In the case of Union of India -Vs- Monoranjan Mondal @ M.R. Mondal reported in (2005)1 CHN 222.

  6. In the case of Senior Divisional Manager, National Insurance Co. Ltd.

& Anr. -Vs- Satima Cold Storage & Ors. reported in (1989)1 CHN 555.

Mrs. Chama Mookherji, learned Advocate appearing for the opposite party refuted such submission of Mr. Ali by submitting that there is no hard and fast rule which prescribes that in all cases where civil suit and criminal proceeding are founded on a common footing, further proceeding of the civil suit should be stayed till the disposal of the criminal case. Mrs. Mookherji submitted that since the scope of enquiry and the standard of proof in the criminal proceeding as well as in the civil suit are different from each other, civil suit cannot be stayed merely because of pendency of the criminal proceeding. Mrs. Mookherji further contended that in every criminal case, offence complained of, is an offence committed by the accused against the State and as such, the de-facto complainant cannot get any relief in such criminal case, even if, the accused is ultimately found to be guilty and is punished. But, in civil suit the plaintiff can surely get the relief if she succeeds in getting a decree in her favour. She further contended that both the civil suit and the criminal proceeding of such nature, demand speedy and expeditious disposal. As such, further proceeding of the civil suit cannot be stayed. In support of such submission, Mrs. Mookherji relied upon various decisions which are as follows :-

  1. In the case of Kamala Devi Agarwal -Vs- State of West Bengal & Ors. reported in AIR 2001 SC 3846.
  • In the case of Dipot Manager, A.P. State Road Transport Corporation – Vs- Hohd. Yousuf Miya & Ors. reported in (1997)2 SCC 699.

  • In the case of State of Bihar -Vs- Murad Ali Khan & Ors. reported in (1988)4 SCC 655.

  • In the case of Pratibha -Vs- Rameshwari Devi & Ors. reported in 2007(6) SC 554.

  • In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries & Ors. reported in (1996)2 Supreme 333.

  • Heard the learned Counsel of the parties. Considered the materials on record including the order impugned.

    On perusal of the decisions which were cited by Mr. Ali this Court finds that there is uniformity in all the said decisions to the effect that there is no hard and fast rule governing the field. It is only when there is any likelihood of embarrassment, further proceeding of the civil suit can be stayed till the disposal of the criminal proceeding. Whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment or not depends upon the facts and circumstances of each case. As such, the Court has to apply its mind for ascertaining as to whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment, in the present set of facts.

    The decisions which were cited by Mrs. Mookherji excepting the decision in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries (supra), are mostly irrelevant for the present purpose as those are the case where either the criminal proceeding was quashed by different High Courts because of pendency of the civil suit or the departmental enquiry in service matter was stayed because of the pendency of the criminal proceeding. In those set of facts the Hon’ble Supreme Court interfered with the decisions of different High Courts which were under challenge before the Hon’ble Supreme Court. In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. & Ors. (supra), the Hon’ble Supreme Court, however, held that stay of the civil suit cannot be granted when the defence has already been filed by the defendant in the civil suit. In fact, the principle which were laid down in the said decision, supports the order impugned as the learned Trial Judge rejected the petitioner’s prayer for stay on identical findings.

    Keeping in mind the principles which were laid down in the aforesaid decisions cited by the parties, let me now consider as to whether the further proceeding of the suit should remain stayed till the disposal of the criminal proceeding or not. It is well known that the standard of proof in civil suit as well as in the criminal proceeding, is different from each other. Civil suit is tried on the basis of preponderance of probability. Criminal proceedings are tried on the basis of proof beyond reasonable doubt. When the standard of proof and the scope of enquiry are different from each other, no Court will feel any embarrassment if both the criminal proceeding and the civil suit are proceeded with simultaneously. That apart, the decision of the Criminal Court is not binding upon Civil Court. As such, civil suit should not ordinarily be stayed for considering the fate of the criminal proceeding in the civil suit. But, still then, it is noticed by this Court that on some occasions, proceeding of the Civil Suit was stayed during the pendency of the criminal proceeding, to avoid embarrassment, on the part of the Court for trial of both the proceedings simultaneously. One of such instances is the case of M.S. Sheriff & Anr. -Vs- State of Madras & Ors. (supra), wherein the Hon’ble Supreme Court stayed the further proceeding of the civil suits till the disposal of the criminal proceeding. In the said decision I find that the criminal proceeding was initiated for wrongful confinement and in the civil suit, damages were claimed on account of such wrongful confinement. Thus, wrongful confinement was a common issue in both the criminal case as well as in the civil suit, and in fact, damage is the consequential relief on account of wrongful confinement. Under such circumstances, the Hon’ble Supreme Court stayed the further proceeding of the civil suit during the pendency of the criminal proceeding for avoiding embarrassment.

    Let me now consider as to how far the said principle is applicable in the facts of the instant case. No doubt cruelty is the ground for divorce. It is equally true that the cruelty is the foundation of the complaint before the criminal Court. Undisputedly the acts constituting cruelty, which were complained of in the criminal proceeding are the acts of cruelty on which the decree for divorce was sought for. Thus, apparently facts are similar in both the aforesaid cases but mere similarity of the facts in both the cases are not sufficient to stay the further proceeding of the civil suit in all cases. Scope and ambit of trial of both the proceedings are to be considered before passing an order of stay of further proceeding of the civil suit.

    Section 498A of the Indian Penal Code deals with cruelty by husband or relatives of husband. The said provision provides that whoever, being the husband or the relatives of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine. What amounts to cruelty for the purpose of the said provision has also been clarified in the explanation added to the said Section which provides that :-

    a) Any unlawful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health “whether mental or physical” of the woman or;

    b) Harassment of the woman where such harassment is with a view of coercing her or any person related to her meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Thus, cruelty has a limited meaning as defined in the said provision.

    But under the Hindu Marriage Act cruelty has not been defined. As such, any act or conduct which though may not amount to cruelty within the meaning of the definition of cruelty as given in Section 498A of the Indian Penal Code, may constitute cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act. https://twitter.com/ATMwithDick/status/1021387677759832064

    Since the cruelty has not been defined in the Hindu Marriage Act, it is difficult to define precisely as to what exactly cruelty means under Section 13(1)(ia) of the Hindu Marriage Act. Cruelty under Section 13(1)(ia) of the Hindu Marriage Act may extend to behaviour which may cause pain and injury to the mind as well as to render the continuance in matrimonial home an ordeal where it becomes impossible for them to live together with mental agony, torture or distress. The question as to whether an act complained of was cruel or not is to be determined from whole of the facts and matrimonial relations between the spouses regard being given to their culture, temperament, status in life and state of health of the parties interaction between them in their daily life. Cruelty for the purpose of matrimonial relationship means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily sufferings or of being injured. Cruelty may be physical, mental or legal. In matrimonial laws it may be of infinite variety. It may be by words, gestures or by mere silence, violence or non-violence. To constitute cruelty, the conduct complained of, should be so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be more serious than ordinary wear and tear of the married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in matrimonial laws or not. Thus, cruelty postulates a treatment of the petitioner with such cruelty as to reasonable apprehension in the petitioner’s mind that it will be harmful or injurious for the petitioner to live with the other spouse. Cruelty may be physical or mental. Mental cruelty may consist of verbal abuse and insult by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

    Thus, it appears that the ‘cruelty’ under the Hindu Marriage Act has a different meaning altogether, than that of the concept of ‘cruelty’ as envisaged in the Indian Penal Code. It necessarily follows that even the act complained of, in the criminal proceeding may not constitute cruelty within the meaning of Section 498A of the Indian Penal Code, but, still such act may constitute a ground of divorce on the ground of cruelty where such acts are so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other.

    Since the concept of cruelty under the Indian Penal Code is not exactly identical with the concept of cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act, this Court cannot hold that there will be any embarrassment on the part of the Civil Court in continuing with the trial of the suit during the pendency of the criminal proceeding.

    That apart, the petitioner has already disclosed his defence in the civil suit. Since the defence has already been disclosed by the petitioner in the civil suit, it cannot be reasonably expected that a different stand will be taken by him in the criminal proceeding against identical acquisition. Thus, when the defence has already been filed by the petitioner in the civil suit and the scope of enquiry in the civil suit has already been determined by framing of issue therein, this Court relying upon the decision of the Hon’ble Supreme Court in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. & Ors. (supra) as well as on the decision of the Hon’ble Court in the case of Senior Divisional Manager, National Insurance Co. Ltd. & Anr. -Vs- Satima Cold Storage & Ors. (supra), holds that further proceeding of the civil suit cannot be stayed on account of pendency of the Criminal proceeding.

    In both the criminal proceeding as well as in the Civil Suit, the examination of the wife has commenced. Evidence-in-chief of the wife has already been concluded in both the criminal proceeding as well as in the Civil Suit. Cross- examination of the wife has commenced in the criminal proceeding and a date has been fixed in the Civil Suit for cross-examination of the wife. This Court holds that if the Civil Suit is stayed at such advanced stage of trial, then the opposite party will suffer loss and injury.

    In my view, under such circumstances, the Civil Court will not find any embarrassment, if both the criminal proceedings and the civil suit are tried simultaneously as the scope of enquiry and the standard of proof in both the proceedings are not identical. That apart, both the criminal proceeding as well as the suit for divorce demand speedy disposal. Stay of any one of such suit and/or proceeding will surely have a wrong impact not only on the society but also on the parties in their matrimonial life.

    Under such circumstances, this Court does not find any justification to interfere with the order impugned.

    Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.

    ( Jyotirmay Bhattacharya, J. )

    NO 125 interim maintenance due to doubts on wife’s earnings !!. Time limit to close case. Cal HC

    NO 125 interim maintenance due to doubts on wife’s earnings !!. HC refuses to intervene and grant the wife any money at interim stage !!

    In this case the SDJM rejects wife’s prayer for interim maintenance. The wife goes on appeal up to HC. At the rial court, the wife has been asked to submit her income tax returns and finally the wife is seen as a partner in a well earning travel agency. Husband is sick and left with very little income. HC refuses to grant wife any interim maintenance. HC analyses the the words and meaning of sec 125. Good case that reiterates that EVERY WIFE is NOT entitled to Sec 125 maintenance !!


    Calcutta High Court

    Sm. Swastika Sen vs The State Of West Bengal And Sri … on 3 December, 2002

    Equivalent citations: (2003) 2 CALLT 359 HC, I (2004) DMC 66

    Author: M Basu

    Bench: M K Basu

    JUDGMENT M.K. Basu, J.

    1. This revisional application under Sections 482 Cr.PC is directed against the order dated 7.1.2002 passed by the learned SDJM, Alipur in Case No. M-244/01 pending before that Court under Section 125 CrPC rejecting a prayer for interim maintenance of the petitioner and interim award of Rs. 1500/- per month on account of the child till the hearing and disposal of the main petition. The case of the petitioner is as follows. She was married to the opposite party No. 2 Promit Sen according to Hindu rites. On 18th June, 1998 soon after the marriage she was subjected to severe mental and physical torture by the opposite party No. 2 and her in-laws. The opposite party No. 2 was whimsical, selfish and irresponsible and he used to abuse the petitioner and to pick up quarrel with her every now and then on baseless and false accusations. She used to be constantly intimidated, threatened and assaulted by the opposite party No. 2 on a number of occasions on the ground of his dissatisfaction in respect of articles given by her parents during their marriage. Ultimately she was sent by the opposite party No. 2 and her in-laws to her parental home where she has been residing till now and the expenses of her and her child’s maintenance are being borne by her father. The opposite party No. 2 neither care to bear any such expense nor paid any visit to her father’s house nor take any information about them. She has no independent source of income. Under such circumstances she has filed the petition under Section 125 Cr.PC in question claiming maintenance from the opposite party No. 2 on account of herself as well as the child who was born out of this wedlock. The petitioner also filed a criminal case against the opposite party No. 2 and the other in-laws under Sections 498A and 406 IPC which is in the Court of the learned Magistrate being Jadavpur P.S. Case No. 190/2000. The Police after investigation has submitted a charge sheet in that case against the opposite party No. 2 and the other in-laws and that case is still pending in the Court of SDJM, Alipur for trial. The opposite party No. 2 is a professional singer and is the owner of an Export oriented Concern Style as M/s. Super Exports having its office at Mission Road, Bangalore-56, He is also a major shareholder of M/s. Super Plastic wherefrom he earns more than Rs. 1 1/2 lakhs per month. The petitioner has 10% share in a Travel Agency Firm under this Style M/s. Capri International which is owned by her mother but the form of business of that Firm is absolutely uncallable and since July 2001 she did not receive any remuneration from that firm in any manner. She has prayed for grant of maintenance to the tune of Rs. 20,000/- per month for herself and Rs. 10,000/- per month for the child. https://vinayak.wordpress.com/?s=maintenance
    2. The learned SDJM after hearing both sides and perusing a document filed by both the parties passed the impugned order rejecting the prayer of the petitioner for grant of interim maintenance and directing payment of Rs. 1500/- per month by way of interim maintenance for the child. Being aggrieved by this order the petitioner has preferred this revisional application challenging the same as erroneous and unjustified being passed on the basis of vague surmises and conjectures.

    3. The contention of Mr. Basu, the learned advocate for the petitioner has been that it is not understood wherefrom the learned Magistrate could draw the conclusion that the petitioner was not a destitute lady and need not require any maintenance. Mr. Basu has criticised the impugned order as improper and perverse and his findings that the petitioner had some income of her own as totally unwarranted. According to Mr. Basu, the learned SDJM has not given any reason for coming to such finding and passing the impugned order and being a non-speaking order it has been rendered liable to be set aside. In support of his contention he refers to the decision wherein it has been held that assigning of reason in an order passed by an Administrative Authority or a judicial forum is of utmost importance and necessity. This is so because giving of reason is the sine qua non of ajudicial order and is a consequence of the principle of natural justice. Mr. Basu then submits that the provisions of the Cr.PC having been amended by the Act No. 50 of 2001, a Magistrate is no longer required to keep the amount of maintenance confined within the limit of Rs. 1500/- and in view of such Amending Act, the limit is only reasonableness. According to him, considering the standard of living of the parties and the rising price index in respect of the essential articles which are being necessaries the learned Magistrate ought to have awarded a much higher amount by way of maintenance for the child. So far as the wife is concerned, according to Mr. Basu, she having no independent source of income is entitled to get a reasonable amount of maintenance from the opposite party No. 2 whose income has already been mentioned above. Mr. Basu refers to a number of decisions of the Apex Court to bring home his point that the husband is under a statutory duty to provide maintenance to his married wife and under the shastric mandate also such an obligation has been cast upon the husband irrespective of whether the wife has got any stridhan properties or even any earnings. Mr. Basu’s further contention is that in view of the Central Amendment of Section 125 of the Cr.PC the limit of award of maintenance under the said section need not be confined to Rs. 1500/- and the learned Magistrate is now at liberty to award a higher amount if found justified or necessary. The question, however, has been raised as to whether the said amendment has got any retrospective effect, that is to say, whether the pending proceedings should be governed by the same. Inasmuch as, it came into force with effect from 24th September, 2001 when this proceeding had already been pending. Mr. Basu has strenuously argued that such a beneficial legislation will have retrospective effect and such pending proceedings will come under its purview. In this connection he refers to the decision reported in (1) , (2) . (3) , (4) AIR 1978 SC 741 & 1807, (5) AIR 1991 SC 1256 and (6) 2000 CCrLr (Cal) 179.

    4. As against this, Mr. Gooptu, the learned advocate for the opposite party No. 2 has argued that the petitioner cannot be entitled to get any award of maintenance for herself, because she has an independent source of income, a fact which is prima facie established from the document, namely, Income Tax Return submitted by her before the Income Tax Authority and the learned Magistrate was perfectly right refusing to award any interim maintenance at this stage after being satisfied prima facie from the documents filed by the parties that the petitioner having submitted Income Tax Return had definitely some source of income of her own and in view of the legal position she could not be entitled to get any maintenance from the husband. Mr. Gooptu draws my attention to pages 80 to 83 of the LCR. The Income Tax Statement pertaining to the Assessment Year 1999-2000. The next contention of Mr. Gooptu is that the amount of Rs. 1500/- as awarded for the child would not be enhanced, inasmuch as, the amendment of Section 125, Cr.PC as pointed out by Mr. Basu cannot have any retrospective effect. In support of the contention he cites the following reference: (1) (Y. Arul Nadar v. Authorised Officer, Land Reforms, Thanjavur) wherein it has been held that as per the general rule when an amendment is introduced in the statute governing the case already pending, the rights and obligations of parties should be decided only according to the law which existed when the action was begun unless a clear contrary intention is evident in the Amending Act and there could not be any imputation of retrospective operation to an Amending Act and that could be done only by the Amending Act either expressly or by necessary implication; (2) (Bhagat Ram Sharma v. Union of India and Ors.) wherein it has been held that it is a matter of legislative practice to provide while enacting an amending law that an existing provision shall be deleted and a new provision substituted and such deletion has the effect of repeal of the existing provision and such a law may also provide for the introduction of a new provision. It bas been further held therein that amendment is in fact a wider term and includes abrogation or deletion of a provision in an existing statute and an amendment of substantive law is not retrospective unless expressly laid down or by necessary implication inferred; (3) AIR 1924 All 563 (Kashmiri Lal v. Kishen Deb wherein it has been held that inasmuch as the accused had incurred the liability to have his prosecution sanctioned and the complainant on the dismissal of his application by the subordinate Judge had acquired a right to apply for sanction to the Appellate Court, Section 6(sic) of the General Clauses Act applied to the case and the repeal of the old Section 195 did not affect the investigation and (4) AIR 2000 Mad 167 wherein it has been held that in case of Motor Vehicles Act being amended and each amending provision providing for no fault liability cannot be given retrospective effect, because if such retrospective effect was given, then it would definitely affect existing right or obligation of the owner of the vehicle in question and the insurer for no fault of theirs and it has to be decided in consonance with the law as it stands on the day of its moving, since it is a matter pertaining to procedure. It has been further held in this judgment that when two interpretation are found possible regarding the question of retrospectivity, the interpretation that the provision is prospective will be preferred.

    5. Mr. Gooptu placing reliance upon the decision (Bhagban Dutt v. Sm. Kamala Devi and Anr.) contends that a wife’s right to maintenance is not absolute and in determining the amount of maintenance a Magistrate is competent to take into consideration the separate income and means of wife. Their Lordships in this case have further observed that any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own to misuse the section as a punitive weapon against their husbands. https://vinayak.wordpress.com/?s=maintenance

    6. Mr. Gooptu then contends that Section 125 CrPC is not intended to provide for a full and final determination of the status and personal rights of the parties at the interim stage and the jurisdiction conferred by this section on the Magistrate is more in the nature of the preventive rather than a remedial jurisdiction and it is certainly not punitive.

    7. He then submits that his client is suffering from chronic thyroid problems due to which he is undergoing medical treatment under the supervision of various doctors and a large amount of money has to be mobilised in order to continue his treatment and such facts are borne out from the medical documents annexed to the written objection filed by this opposite party No. 2 before the trial Court and due to such continued ailment and long absence from this city he is unable to derive any income from his profession, namely, singing Rabindra Sangeet and consequently he has to depend on others for his subsistence and medical treatment as has been stated by him on oath in the affidavit.

    8. Mr. Gooptu then refers to the decision to bring home the point that when affidavits are submitted by the parties in a proceeding for disposal of interim application under Section 125 CrPC, in the event one version is rejected being untrue or not credible at the interim stage pending trial, the other is to be accepted prima facie by the trial Court as proved. Mr. Gooptu has further submitted that the Income Tax Statement of the petitioner pertaining to the relevant year in question, that is, 2000-2001 has not been produced before this Court, though the learned counsel of the petitioner was so directed and on behalf of the petitioner the submission having been made that no return has been filed by her for the subsequent Assessment Year it should be taken that the petitioner having violated the mandatory provisions of the law as she has not submitted the Income Tax Return for the said Assessment Year, she is liable to serious penal consequences under the Income Tax Act and the Indian Partnership Act.

    9. The question for determination in this revisional application is whether the impugned order suffers from any impropriety. By this order the learned Magistrate has refused to grant any interim maintenance in favour of the petitioner-wife, though he has allowed such maintenance for the child. The ground on which her prayer for interim maintenance has been rejected appears to have been couched in the following language.”Some unproved documents are filed by both parties in the form of affidavits and counter affidavits. These documents give some hints from which I prima facie find that the 1st party has some income of her own ……………. In view of the above discussed circumstances I think that the 1st party is not a destitute lady required to be saved from vagrancy…..”

    10. Such a finding perhaps owes its origin to the existence of the Income Tax Return (annexed to the affidavit) submitted by the petitioner, Swastika Sen, for the Assessment Year 1999-2000, that is, for the period from 1.4.1998 to 31.3.1999. However, the learned Magistrate has not made it clear by using express words and that omission has quite pertinently given rise to such a criticism levelled by Mr. Basu against the order. This lapse may of course be due to a poor power of expression on the part of the Magistrate concerned, but the question which seriously arises is whether owing to such a reason, owing to the Presiding Officer’s inability to apply the appropriate words in the reasoning part of his order which may be due to his poor expressive capacity, the order should be thrown away, even though there are good grounds transpiring from the materials on record justifying the passing of such an order.

    11. Section 125(1)(a) CrPC clearly provides that a wife will be entitled to get an award of maintenance, If, inter alia, she is unable to maintain herself. It follows that if a wife is an employed person or has a business and earns a definite sum by way of regular income and.if the Court finds such income as sufficient for the purpose of enabling her to earn her livelihood, then certainly she cannot claim maintenance from the husband. This is the clear dictate of the law and a departure therefrom cannot be permissible. Otherwise, the expression, “if she is unable to maintain herself’ would lose all its meanings. In the present case, the case of the opposite party-husband is that the petitioner is a 50% partner of a Travelling Agency along with her mother running in the name and style of M/s. Capri International and moreover, she is a dance-teacher and her collective income from the aforesaid sources is not less than Rs. 1,20,000/- per annum and this would be disclosed from the I.T. Return submitted by her. A xerox copy of the I.T. Return submitted by the petitioner before the Income Tax Authority for the Assessment Year 1999-2000 relating to the period from 1st April, 1998 to 31st March, 1999 has been filed (vide page 80 of the LCR). This return shows that the gross income which she earned during the said year from her business or profession amounted to Rs. 54,140/- and she paid income tax of Rs. 414/- on this amount during that year. As against this, the petitioner has stated in her counter-affidavit (vide page 68 of the LCR) that the said Travel Agency has become sick industry and the petitioner only has a share to the extent of 10% on the business of that Travel Agency and she gets only Rs. 600/- per month. As regards the Income Tax Return purportedly filed by her, her case is that she was forcibly made to sign this I.T. Return, although she had no income of her own and she wrote a letter to the Income Tax Commissioner dated 18.8.1999 stating that the I.T. Return in question had not been submitted by her since she had no taxable income at all and she was a mere student, but it was actually filed by her husband and further that the said Return though filed does not reflect the correct position. A copy of this letter bearing the stamp of the office of the Income Tax Commissioner initiating its receipt by the officer has been filed. But this letter practically takes us nowhere. Along with this Income Tax Return mentioned above statement that (sic) has been submitted showing that the petitioner earned a gross income of Rs. 54,000/- and odd and paid income tax of Rs. 414/- and they included a balance-sheet, self-assessment challan and a valuation return and the said Income Tax Return appears to have been signed by the petitioner herself. It has got some sanctity in the eye of law. As per the Income Tax Rule an assessee who starts submitting Income Tax Return has to continue submitting such returns every year. If she ceases to earn any income, even then she has to file a Nil Statement by way of Return. Moreover, in her petition the petitioner’s own case is that she has 10% share in the said business and she earns only Rs. 600/- per month. In such an event also she is required to submit a Income Tax Return although her income may not be taxable. But curiously enough, the petitioner does not make any whisper in her affidavits as to whether she has submitted any such Income Tax Return in the subsequent years. During hearing of argument, on being approached by me. Mr. Basu, the learned counsel submitted that his client would not file any copy of such Income Tax Return before this Court relating to the current year. It is not understood whether she has submitted before the Income Tax Authority any such Income Tax Return at all during the current year or the year in question because of her silence in her petition as to this aspect of the matter. As a result, it is not clear as to whether any Return has at all be filed, by her for the relevant year before the Income Tax Authority and accordingly, as argued by the learned advocate for the opposite party, the question of drawing adverse presumption arises. As per the Rule, once a Return has been filed, one is required to go on submitting such Returns every year irrespective of whether one’s income has fallen or decreased. Under such circumstances from the fact that the petitioner has not filed any such Income Tax Return for the relevant year, not she has stated on affidavit that she has not submitted any such Return before the Income Tax Authority for the relevant year, it is to be presumed prima facie that she is witholding the same and . had it been produced, sufficiently rebutted is a question of fact and cannot be determined without reference to the evidence which may be adduced by the parties during the inquiry to be held in the main proceeding.

    12. At this stage when the question of payment of interim maintenance is under consideration and the evidences are yet to be adduced by the parties such documents and circumstances should serve as yardstick, only prima facie, to enable the Court to come to a finding and pass an order touching the question of interim relief. The question raised by the petitioner that the Income Tax Return submitted by her was the result of force or coercion applied by her husband can be decided only after taking evidence from both sides and cannot be adjudicated upon at this stage simply on the basis of a copy of letter allegedly written by the petitioner to the Income Tax Authority, particularly when such an allegation does not find place in her affidavit. It would be unsafe and improper to hold without taking evidence that the Income Tax Return filed by her before the Income Tax Commissioner, which is an official and authentic document, is falsified by a mere letter allegedly written by her to that Authority,

    13. The Income Tax Return prima facie shows that she had an average income of about Rs. 4500/- per month and in view of such earnings of the petitioner being prima facie found from the record, the Court below was not unjustified in refusing to award any interim maintenance for the wife so long as the main matter as not heard and disposed of by obtaining evidence from the parties on the prima facie substantial ground that she could not be said to be unable to maintain herself during the interim period. However, the manner In which the ordering part has been expressed by the learned Magistrate is not happy. Without holding an enquiry he cannot come to such a finding, viz. “….. the 1st party is not a destitute lady required to be saved from vagrancy.” He ought to have used the phrase, “prima facie” otherwise such an observation conveys a wrong signal, as if he is disposing of the issue in the main proceeding once for all — a course which is fraught with the danger of prejudging of the issue which Is to be decided after hearing of the main proceeding. It should not be forgotten that interim orders in respect of such matters are only provisional until final orders are made and such interim relief is granted only subject to what is found and enjoined in the final orders and interim orders which are passed on a prima facie satisfaction of the presiding officer of the concerned Court on the basis of documents or affidavits may very well be altered, varied or even totally vacated after considering the evidence both oral and documentary adduced by the parties during hearing of the main matter.

    14. It is true, as has been argued by Mr. Basu, that the learned Magistrate has not assigned reasons for coming to his conclusions, for example, he has said that the first party is found to have some income, but he does not discuss from which documents he makes this observation, although the fact remains, as I have discussed above, the petitioners drawing an Income regularly has been shown by the document called Income Tax Return. Similarly, the learned Magistrate has made the observations that from some ‘unproved documents’ it has been shown that the lady was not a destitute person. Here again he ought to have elaborately made a discussion about such documents which he was referring to. In the absence of doing that his findings have been rendered unreasoned. Another instance of the impugned order’s being vague and confusing is where the learned Magistrate uses the expression ‘gives some hints’. Giving of hints and furnishing of proof are totally different concepts and on the basis of the former a Court of law cannot pass its verdict either granting or denying a relief sought by any party. Then again, in the concluding part of his order he says that in view of the ‘abovediscussed circumstances’ he thinks that “the 1st party is not a destitute lady required to be saved from variance”. According to Mr. Basu, there is no discussion on this point in the least in the body of the judgment and hence the learned Magistrate’s referring to the ‘above discussed circumstances’ is absolutely hollow. He argues that due to such paucity of reasoning the order becomes perverse and on that score alone it should be given a go-by. But this contention of Mr. Basu is not acceptable to my mind. Simply because reasons have not been assigned by the trial Court for arriving at a particular finding, although from the materials on record it is prima facie found that there exist some good grounds for drawing such conclusions, the said order cannot be set aside on the sole ground that the Court below has not recorded such reasons or grounds. This finding may or may not remain unaltered after evidence as adduced by the parties are considered by the learned Magistrate during the main hearing, but as an interim order it is quite justified. Since this part of the order does not suffer from any illegality or infirmity of law I do not find anything to interfere with the same.

    15. The next point urged on behalf of the petitioner is relating to the second part of the impugned order and is on the alleged inadequacy of the amount of maintenance that has been awarded by the learned Magistrate on account of maintenance of the child, namely, Rs. 1500/-. According to Mr, Basu, on the date on which this order was passed, that is, 7th January, 2002 the amendment of the CrPC in respect of Section 125(d) of the Code had already come into operation and therefore, the learned Magistrate’s hands were not tied and he was not to be restricted regarding the quantum of maintenance to be awarded by him under this section within an amount not exceeding Rs. 1500/-. In other words, since by virtue of the said amendment a Court of Magistrate under this section became entitled to award any sum by way of maintenance which would be deemed to be reasonable in the circumstances, there was nothing to debar the learned Magistrate from fixing an amount by way of maintained exceeding Rs. 1500/- in order to do justice to the rising price and cost of living index and also to the status and standard of living of the petitioner in particular. In support of his argument Mr. Basu refers to a host of decisions of the Apex Court as well as of different High Courts. Thus he cites the decision reported in AIR 1991 SC 1256 (Amirtham Kudumbah v. Sarnam Kudumban) wherein it has been held that in case of a beneficial legislation whatsoever gives restriction use or constitutes an embargo in the way of giving effect to such a welfare enactment should be removed and according to Mr. Basu by stretching this logic to the present case, the benefit of this amendment should be extended to the pending cases also. It may be mentioned here that the above mentioned amendment came into operation on and from 24.9.2001 (vide the Government Notification concerned). Mr. Basu also refers to the decision wherein it has been held that the words of remedial statute should be so construed as to ensure that the relief contemplated under the status in the question may not be denied to the clash intended to be relieved and on the basis of this ruling it should be taken that the amendment of the CrPC in question should have retrospective operation even though nowhere that has been mentioned in express terms. Then Mr. Basu relies upon another ruling (Bengal Immunity Co. Ltd. v. State of Bihar and Ors.) whereunder Their Lordships enunciated certain principles on the strength of which propagated that ail beneficial status should be retrospective operation. The next ruling cited by Mr. Basu is (Muktinarain Jha v. State of Bihar) and (Captain R.C. Kaushal v. Mrs. V. Kaushal) whrerein it was held that the provisions of Section 125 formed a major of social justice for the purpose of protection the weaker section and with that end in view, according to Mr. Basu, any legislation containing beneficial provisions should have retrospective operation.

    16. The second line of Mr. Basu’s argument consists in the point raised by him that even if such a legislation is taken to be prospective, even then there will be no difficulty In granting the relief at the new rate and at the same time maintaining its prospectivity if with regard to a pending proceeding the new rate is applied only on and from the date when the amendment takes effect. In support of this contention he relies upon the decision reported in 1999 CCrLr 116 (Cal HC) and 2000 CCrLr (Cal) 179 (Dhananjoy Samanta v. Sobitri Samanta).

    17. As against this, Mr. Gooptu vehemently argues that this petition for maintenance having been filed on 13.4.2001 this amending provision which came into effect on 24.9.2001 cannot govern this pending proceeding because of the general principle that unless a clear, contrary intention is evident in the amending Act, it cannot be retrospective and must be prospective. In support of this contention, the decision (Y.A. Nadar v. The Authorised Officer, Land Reforms, Thanjavur) is referred to wherein it has been held that when an amendment is introduced in the statute governing the cases already pending, the rights and obligations of parties should be decided only according to the law which existed when the action was begun, unless a clear and contrary intention is evident in the provisions of the amending Act and there could not be imputation of retrospective operation to an amending Act. He also cites a further couple of reported judgments to get his argument strengthened, namely, (1) (Bhagat Ram Sharma v. Unions of India) & (2) AIR 1924 Allahabad 563 which I have already discussed above. https://twitter.com/ATMwithDick?lang=en

    18. Mr. Gooptu raises the question that if the argument of Mr. Basu is taken to its logical extreme, then by virtue of following of such a principle, namely, giving retrospective effect to such an amending provisions we may be led to an irreconcilable situation. Those cases which were filed before the coming into operation of such a legislation, but which were pending at the time when it came into operation and as disposed of without getting the benefit of this enactment will be discriminated against and there may be the emergence of a spate of applications seeking the newly awarded benefit– an exigency which the law never encourage.

    19. Be that as it may, it should not be forgotten that after all this is an application for interim maintenance and the main maintenance application is yet to be heard. If this question, namely, whether the abovementioned amendment of Section 125 CrPC should have retrospective effect or not is decided at this stage, then that may involve the risk of pre-judging of the point falling for determination in the main application under Section 125 CrPC before the learned Magistrate. This is a stage wherein the question of granting of interim relief is taken up for determination and for that purpose such thread-bare analysis of the materials on record, vis-a-vis, the legal position will be highly undesirable and also impermissible. The learned Magistrate has awarded a sum of Rs. 1500/- on account of maintenance of the child by way of interim relief only and that is not the be-all and end-all of the respective cases of the parties and that amount has been fixed only as a provisional one in view of meet the urgency of the situation and the proper and final order as regards all related questions touching this application for maintenance will be passed by the Court of Magistrate after taking evidence from both sides and after hearing their arguments. Hence any observation or verdict given on the controversies raises by the parties on the questions in issue at this stage will be bound to have repercussions on the merits of the matter when the learned Magistrate will take up the same for final hearing and in order to avoid such a possibility of pre-judging of the issues awaiting determination by the learned Magistrate I refrain myself from expressing my views on the contentions of the learned advocate for both sides on this question as to whether the said amendment to Section 125 of the CrPC in question will have retrospective effective or prospective operation and (sic) the learned Magistrate could have granted an award of interim maintenance for the child exceeding Rs. 1500/- a month.

    20. Instead, I am inclined to fix a time-limit within which the main proceeding under Section 125 CrPC in question may be finally disposed of by the Court below, leaving the impugned order intact.

    21. Accordingly, I do not interfere with the impugned order but I direct the learned Magistrate to finally dispose of the main proceeding, that is, the application for maintenance under Section 125 CrPC pending before it, within two months from the date of receipt of the LCR without fail. If any of the parties does not cooperate, the case may proceed according to law notwithstanding such non-participation. While disposing of the main matter on merits the Court below shall not be influenced by any observation made in this judgment regarding the merits and shall adjudicate upon the same quite independently according to the law and as per the evidence that may be adduced by the parties before him. https://vinayak.wordpress.com/?s=125

    In the result, the revisional application be dismissed. The LCR be sent back immediately to the Court below along with a copy of this judgment and order.

    Interim order of stay, if there is any, be vacated.

    Xerox certified copies, if applied for by any party, may be supplied without delay.

     

    Either lump sum OR monthly maintenance u/s 20 DV act. NOT both ! Cal HC Gem !

    a mother files DV case on three of her children. The learned MM allows her petition and orders Rs 2000 p.m. from each of her sons AND a fixed deposit of rs 50,000/- per head. Sons appeal to sessions court who sets aside the lump sum payment and grants enhanced monthly maintenance of Rs 2500 per month per son. Mother goes on appeal to HC. HC appreciates the facts and points out that sec 20 of DV act allows only for lump sum OR monthly maintenance AND NOT both !! So HC affirms sessions court judgement and confirms that either Either lump sum OR monthly maintenance can only be granted under Sec 20 DV act !!


    IN THE HIGH COURT AT CALCUTTA

    CRIMINAL REVISIONAL JURISDICTION

    Appellate Side

    Present : THE HON’BLE JUSTICE SANKAR ACHARYYA

    C.R.R. No. 1012 of 2015

    In the matter of :

    Shahira Khatoon Mullick
         Vs.
    Rabiul Haque Mullick & Ors.

    For the petitioner    : Mr. Suman De; advocate.

    For the private respondents  : Mr. S.K. Humayun Rezzak; advocate.

    Heard on              : 06.01.2016, 20.01.2016, 29.01.2016,

    08.02.2016.

    Judgment on           : 29.03.2016

    SANKAR ACHARYYA, J.

    This revisional application under Sections 397/401/482 of the Code of Criminal Procedure has been filed by petitioner Shahira Khatoon Mullick against her three sons as opposite party nos. 1, 2 and 3 and the State of West Bengal as proforma respondent no. 4.

    Petitioner has challenged the judgment dated 13.02.2015 passed by learned Additional Sessions Judge, Arambagh, Hooghly in Criminal Revision No. 01 of 2014 arising out of order dated 31.03.2014 passed by learned Judicial Magistrate, Additional Court, Arambagh in M.C. 83 of 2013.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    Petitioner filed M.C. 83 of 2013 under the provisions of the Protection of Women from Domestic Violence Act, 2005 (in short P.W.D.V. Act) against her three sons who are opposite party nos. 1, 2 and 3 herein. In the order dated 31.03.2014 learned Judicial Magistrate passed residence order and order granting monetary reliefs in favour of the petitioner. In that order direction was given to the opposite party nos. 1, 2 and 3 to provide Rs.2000/- each as monthly maintenance to the petitioner and to contribute Rs.50,000/- each in the fixed deposit to be opened in the name of the petitioner in some nationalised bank which is to be dedicated towards her unforeseen medical expenses and needs and treatments expenditure. Said order was challenged by opposite party nos. 1, 2 and 3 in Criminal Revision No. 01 of 2014. In that case learned Additional Sessions Judge, Arambagh allowed the revisional application in part and modified the order of learned Judicial Magistrate setting aside the order for contributing Rs.50,000/- each by the three opposite party nos. 1, 2 and 3 in favour of petitioner as fixed deposits and enhancing the sum of monthly maintenance allowance of the petitioner from Rs.2000/- to Rs.2500/- each payable by said three opposite parties. In this revisional application petitioner has challenged the legality, propriety and correctness of the impugned judgment passed by learned Additional Sessions Judge.

    I have gone through the certified copy of the impugned judgment, revisional application and its annexure filed by the petitioner. Undisputedly, the petitioner is mother of the opposite party nos. 1, 2 and 3 and the petitioner is an octogenarian lady having other sons and daughters also.

    In this revisional application, inter alia, it has been contended that learned Additional Sessions Judge erred in law setting aside the direction of learned Judicial Magistrate regarding the contribution of Rs.50,000/- each of the three opposite parties towards medical expenses of the petitioner. It has been claimed by the petitioner that Section 20 (1) (b) of the P.W.D.V. Act deals with medical expenses and according to Section 20 (3), maintenance may be paid in lump or monthly basis. Further claim of the petitioner is that in terms of Section 20 (1) (b) of the said Act, the Magistrate, which disposing of an application under Section 12 (1) of the said Act, may direct the respondent to pay medical expenses in addition to other monetary relief. In the same tune, Mr. Suman De, learned counsel advanced his arguments that learned Additional Sessions Judge failed to appreciate that the power of learned Magistrate under Section 20 (3) of the said Act is in addition to the provisions of Section 20 (1) of the said Act and not disjunctive in nature. Petitioner also contended that in view of the provision of appeal under Section 29 of the Act learned Additional Sessions Judge ought to have dismissed the revisional application against the order of learned Judicial Magistrate.

    Mr. Rezzak, learned counsel for the opposite party nos. 1, 2 and 3 argued that learned Magistrate erred in passing order for payment of monthly maintenance and lump sum amount both although Section 20 (3) of the P.W.D.V. Act provides for payment of either monthly maintenance or a lump sum amount. He advanced arguments that learned Additional Sessions Judge rightly modified the order of learned Magistrate by proper interpretation of the statutory provisions which requires no interference by this Court.

    Regarding maintainability of the revisional application in the Court of learned Additional Sessions Judge, I like to mention that said learned Court is competent to hear an appeal under Section 29 of the P.W.D.V. Act. Statutory bar under Section 397 (2) of the Code of Criminal Procedure is not attracted against the revisional application as per determining question in that Court. In the impugned judgment learned Additional Sessions Judge did not take up for consideration of any matter beyond the scope of determination in an appeal under Section 29 of the P.W.D.V. Act. Yet, it was proper for the opposite party nos.1and 3 to file their petition of appeal under Section 29, P.W.D.V. Act instead of their revisional application before the Court below. It does not appear from the materials on record that present petitioner raised the question of maintainability of revisional application before learned Additional Sessions Judge. Having considered the above aspects I am of the view that excepting the form of application instead of petition of appeal under Section 29 of the P.W.D.V. Act filed by the petitioners in the Court below there was no major defect in proceeding the revisional application before learned Additional Sessions Judge. In my considered opinion, when the substance of the revisional application was entertainable in law and was considered judicially by a competent Court, the defect in form of application which was presented before it does not vitiate the entire proceeding. As such, the legality, propriety and correctness of the impugned judgment should be considered on merits by this Court in the present case.

    In respect of observation made in the impugned judgment about enhancement of monthly maintenance of the petitioner from Rs.2000/- to Rs.2500/- payable by each of the three sons of the petitioner there is no challenge from either party before this Court. The only point in issue on merit is whether learned Additional Sessions Judge has fallen in error making observation that the provision under Section 20 (3) of the P.W.D.V. Act empowers the Magistrate to pass an order for an appropriate lump sum payment or monthly payment of maintenance, as the nature and circumstances of the case may require and that the learned Court below has passed an order directing the petitioners (opposite party nos. 1 and 3 herein) to pay both monthly maintenance and also to pay Rs.50,000/- each which is beyond the scope of the provisions of Section 20 (3) of the P.W.D.V. Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    |  Section 20 of the P.W.D.V. Act reads as:-
      |  
      |  “20. Monetary reliefs.-
      |  
      |  1. While disposing of an application under Sub-Section (1)
      |  of Section 12, the Magistrate may direct the respondent to
      |  pay monetary relief to meet the expenses incurred and
      |  losses suffered by the aggrieved person and any child of
      |  the aggrieved person and as a result of the domestic
      |  violence and such relief may include, but is not limited
      |  to,-
      |  
      |  a). the loss of earnings;
      |  b). the medical expenses;
      |  c). the loss caused due to the destruction, damage or
      |  removal of any property from the control of the aggrieved
      |  person; and
      |  d). the maintenance for the aggrieved person as well as
      |  her children, if any, including an order under or in
      |  addition to an order of maintenance under Section 125 of
      |  the Code of Criminal Procedure, 1973 (2 of 1974) or any
      |  other law for the time being in force.
      |  
      |  2. The monetary relief granted under this Section shall be
      |  adequate, fair and reasonable and consistent with the
      |  standard of living to which the aggrieved person is
      |  accustomed.
      |  
      |  3. The Magistrate shall have the power to order an
      |  appropriate lump sum payment or monthly payments of
      |  maintenance, as the nature and circumstances of the case
      |  may require.
      |  
      |  4. The Magistrate shall have the power to order for
      |  monetary relief made under Sub-Section (1) to the parties
      |  to the application and to the in-charge of the police
      |  station within the local limits of whose jurisdiction the
      |  respondent resides.
      |  
      |  5. The respondent shall pay monetary relief granted to the
      |  aggrieved person within the period specified in the order
      |  under Sub- Section (1).
      |  
      |  6. Upon the failure on the part of the respondent to make
      |  payment in terms of the order under Sub-Section (1), the
      |  Magistrate may direct the employer or a debtor of the
      |  respondent, to directly pay to the aggrieved person or to
      |  deposit with the Court a portion of the wages or salaries
      |  or debt due to or accrued to the credit of the respondent,
      |  which amount may be adjusted towards the monetary relief
      |  payable by the respondent”.

    In the instant case applicability of the P.W.D.V. Act is not in question. In Sub-Section 1 of Section 20 of that Act Clauses (a), (b), (c) and (d) illustrations have been mentioned for taking into consideration of the monetary relief in composite. In the impugned judgment learned Additional Sessions Judge considered the adequacy, fairness, reasoning and consistency with the standard of living of the petitioner herein for determining the monthly maintenance of the petitioner and for exempting the opposite party nos. 1 and 3 from any liability for payment of lump sum amount in connection with the order of learned Judicial Magistrate. In this case the only determining factor centres around the question as to whether the word ‘or’ mentioned in Sub-Section (3) of Section 20 of the P.W.D.V. Act is conjunctive or disjunctive. Learned counsel for the petitioner tried to impress upon this Court that the said word has been used in the statute to denote conjunctive but learned counsel for the opposite party nos. 1 and 3 argued that the said word is disjunctive. In the impugned judgment said word has been interpreted as disjunctive. Plain reading of the Sub-Section (3) of Section 20 of the P.W.D.V. Act empowers the Magistrate to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. In my opinion, according to the said provisions the Magistrate shall consider the requirement of the aggrieved person according to the nature and circumstances of the case and pass order for payment of monetary relief to the aggrieved person by respondent either in the form of appropriate lump sum amount or in the form of monthly payment of maintenance but not both. As such, said word “or” has been used by the legislature in the statute to denote it as disjunctive. Therefore, I find that learned Additional Sessions Judge has rightly interpreted that word as disjunctive in the impugned judgment. Learned Additional Sessions Judge, maintaining propriety observed correctly that learned Magistrate has ordered both an appropriate lump sum and monthly payment of maintenance which is beyond the scope of the provision of Section 20 (3) of the P.W.D.V. Act.

    In summing up my discussions made above I find and hold that the impugned judgment does not suffer from material infirmity on merit and it needs no interference in this revisional process. As a result, this revisional application is liable to be dismissed.

    Accordingly, this revisional application is dismissed on contest but without any order as to costs. A copy of this judgment be sent to the learned Additional Sessions Judge, Arambagh for drawing his attention to the provisions of Section 29 of the P.W.D.V. Act and for future guidance.

    Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing all requisite formalities.

    (SANKAR ACHARYYA, J.,)

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    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


    2x maintenance will NOT be justice, equity & good conscience. S 24 & S 125 amounts to be adjusted. Cal HC

    “…If, on the other hand, the husband petitioner’s plea of adjustment be negatived only on the ground that the order under Section 24 of the Hindu Marriage Act is a temporary order ….. it would virtually mean saddling the husband-petitioner with a liability to comply with both the orders and make the double payment of maintenance allowance, irrespective of the question other actual requirements of her maintenance. I am afraid, such a course would not be in consonance with the fundamental concept of justice, equity and good conscience.

    “…The mere fact that the order under Section 24 is temporary cannot thus constitute a good ground for making claim for adjustment inadmissible if it is otherwise admissible for the purpose. Adjustment cannot, however, be allowed as a matter of course. Whether such a plea would be admissible would depend upon facts and circumstances of each particular case…..”


    Calcutta High Court

    Sailendra Nath Ghosh vs State Of West Bengal And Anr. on 14 August, 1997

    Equivalent citations: 1998 (1) ALT Cri 17, I (1998) DMC 487

    Author: D B Dutta
    Bench: D B Dutta

    JUDGMENT Dibyendu Bhusan Dutta, J.

    1. The instant application under Section 482 of the Criminal Procedure Code is directed against the order dated 30.11.96 passed by the learned Judicial Magistrate, Seventh Court, Uluberia in Misc. Case No. 42 of 1995.
    2. The said case arose out of an application filed by the opposite party No. 1, Anita Ghosh under Section 125, Cr.P.C. The petitioner is her husband. Their marriage was solemnised according to Hindu rites and customs on 18.2.92. After the marriage, they lived together in the matrimonial home for some time. The opposite party No. 2 being infertile was undergoing medical treatment. There was no issue born out of their marriage. The opposite party No. 2 abandoned her matrimonial home on 30.10.94. The petitioner filed a matrimonial suit for divorce against the opposite party No. 2, being Mat. Suit No. 321 of 1994 in Second Court of Additional District Judge, Hooghly. The opposite party No. 2 lodged a complaint on 25.1.95 in Chandernagore Court alleging matrimonial cruelty against the petitioner. The opposite party No. 2 filed an application under Section 125 of the Criminal Procedure Code praying for maintenance allowance against the petitioner in the Court of Sub-Divisional Judicial Magistrate, Uluberia. Both the matrimonial suit and the complaint case are pending. In the matrimonial suit, the opposite party No. 2 had obtained an order being order No. 17 dated 8.7.96 directing the petitioner to pay alimony pendente lite at the rate of Rs. 700/- per month as well as litigation cost of Rs. 1500/- to the opposite party No. 2 and the petitioner has been paying the alimony pendente lite in terms of that order. During the trial of that case under Section 125, Cr.P.C., the petitioner gave evidence in support of the payment of alimony at the rate of Rs. 700/- per month to the opposite party No. 2. But the learned Magistrate by his impugned judgment and order disposed of the case under Section 125, Cr.P.C. awarding maintenance allowance at the rate of Rs. 800/- in favour of the opposite party No. 2 without, however, considering the fact that the opposite party No. 2 was already receiving a sum of Rs. 700/- towards alimony pendente lite by virtue of the order passed in the matrimonial suit, as a result of which, the opposite party No. 2 is getting maintenance allowance from the petitioner twice a month.

    3. Mr. A. Goswami, the learned Counsel appearing for the petitioner contended that the learned Magistrate ought to have made provision in the impugned order for adjustment of Rs. 700 /-, the amount which the opposite party No. 2 is getting by way of maintenance pendente lite in terms of order dated 8.7.96 passed in the matrimonial suit against the amount of Rs. 800/- which he awarded in her favour towards her maintenance allowance. If this adjustment is not allowed, the petitioner will be unjustly saddled with a liability to make payment of maintenance allowance to the opposite party No. 2 twice a month. Accordingly, Mr. Goswami wants this Court to modify the impugned order by making provision for adjustment of the maintenance pendente lite.

    4. Mr. Goswami placed his reliance on two Single Bench decisions of our High Court. One is reported in 96 CWN 861 in the case of Gosai Ch. Das v. Beauty Das and State of W.B., and the other is a subsequent unreported decision dated 16.6.96 in Criminal Revision No. 2504 of 1995 in the case of Manoj Kr. Chowdhury v. Jharna Chowdhury.

    5. Mr. Amit Talukdar, appearing for the opposite party No. 2, sought to resist the claim for adjustment. He argued that the two proceedings, namely the proceeding under Section 24 of the Hindu Marriage Act and the proceeding under Section 125, Cr.P.C. are two different proceedings. The order granting maintenance pendente lite in the matrimonial suit is not a final determination so as to be entitled to any serious weight in the proceeding under Section 125, Cr.P.C. The mere fact that the opposite party No. 2 is receiving maintenance pendente lite from the Matrimonial Court cannot disentitle her to the order of maintenance allowance from the Magisterial Court under Section 125, Cr.P.C. Mr. Talukdar also submits that the two decisions cited on behalf of the petitioner must be construed as per inquirium inasmuch as the Supreme Court decision in the case of Ramesh Chander v. Veena Kaushal, reported in 1979 Cr.L.J. 3 corresponding to has not been considered or referred to in the said two decisions and as such, the said two decisions will be of no avail to the petitioner in claiming adjustment. Mr. Talukdar relies on the aforesaid Supreme Court decision as well as the decision of Andhra Pradesh High Court reported in 1996 Cr.L.J. 2284, T. Rajender Singh v. Maya Devi.

    6. In the Supreme Court case of Ramesh Chander (supra), the husband sought divorce through the Civil Court and the wife claimed maintenance through the Criminal Court. As an interim measure, the District Court awarded maintenance and the High Court fixed the rate at Rs. 400/- per month. Meanwhile, the Magistrate, on the evidence before him, ordered ex-parte, monthly maintenance at the rate of Rs. 1,000/- for the wife and her two children together. Two points were urged before the Supreme Court on behalf of the husband. First, the Civil Court’s determination of the quantum is entitled to serious weight and the Criminal Court in its summary decision fell into an error in ignoring the former. The second point that was urged was that the awardable maximum for the wife and children as a whole under Section 125 of the Code was Rs. 500/- having regard to the text of the Section.

    7. The Supreme Court virtually answered the first point only at paragraphs 6 and ^ thus: “Broadly stated and as an abstract proposition, it is valid to assert that a final determination of a civil right by a Civil Court must prevail against a like decision by a Criminal Court. But here two factors make the principle inapplicable. Firstly, the direction by the Civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication. Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a higher maintenance. We cannot, therefore, fault the Magistrate for giving Rs. 100/- on this score”.

    8. The Supreme Court appears to have dealt with the second point in die remaining paragraphs of the reported judgment. While dealing with the question of awardable maximum under Section 125 and interpreting the meaning of expression “in the whole” appearing in that Section, the Supreme Court made the following observations : “This provision of Section 125, Cr.P.C. is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. It also observed that the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it had to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts”.

    9. In our case, we are not concerned with any such interpretation. No question had really arisen in the Supreme Court case as to whether the husband was entitled to any adjustment of the amount of maintenance allowance life awarded by the Matrimonial Court against the maintenance allowance awarded by the Criminal Court under Section 125, Cr.P.C. The Supreme Court enunciated the abstract principle that a final determination of a civil right by a Civil Court must prevail against a like decision by the Criminal Court. But the Supreme Court made that principle inapplicable to that case for two reasons. One is that the direction by the Matrimonial Court was only an order pendente lite under Section 24 of the Hindu Marriage Act to pay not only maintenance but also the expenses of the proceeding and was not a final determination under me Hindu Adoptions and Maintenance Act. The second reason that weighed with the Apex Court in making the principle inapplicable was that the amount awarded by the Matrimonial Court did not include the claim for maintenance of the children . In our case, the order that was passed under Section 24 of the Hindu Marriage Act directed the payment of Rs. 700/ – exclusively towards maintenance allowance which did not include any expense of the proceeding since the said order directed the payment of a separate amount towards the expenses of the proceeding. Moreover, the sum of Rs. 700/- awarded by way of maintenance was meant for maintenance of the Opposite party- wife alone and not of any other children since it is admitted that there was no issue born out of the marriage between the petitioner and the opposite party No. 2. It is with reference to the facts of the case of Ramesh Chandra (supra), that the Supreme Court did not fault the Magistrate for giving lis. 1,000/- towards monthly maintenance for the wife and two children together holding inter alia that the order under Section 24 of the Hindu Marriage Act did not bar the jurisdiction of the Magistrate to award a higher maintenance, put it must be pointed put here that the Apex Court while making the observation at paragraph 7 did not categorically hold that the order under Section 24 of the Hindu Marriage Act was totally irrelevant vis-a-vis the order under Section 125, Cr.P.C. It is significant to note here that the Apex Court used the expressions “barring marginal relevance for the Magistrate” at para graphs 7 of the reported judgment. It suggests that the Apex Court did consider the order under Section 24 of the Hindu Marriage Act to be of some relevance for the Magistrate, however, marginal it might be, while he exercises his jurisdiction to award maintenance under Section 125, Cr.P.C.

    10. In our case, the husband petitioner has not at all challenged the jurisdiction of the Magistrate in awarding a higher maintenance of Rs. 800/- as against the lower amount of Rs. 700/- awarded pendente lite under Section 24 of the Hindu Marriage Act. In Ramesh Chancier’s case (supra), no question of any adjustment of maintenance pendente Ute under Section 24 of the Hindu Marriage Act against the maintenance awarded under Section 125 of Cr.P.C. was specially raised or fell for consideration by the Apex Court nor did the Apex Court hold in that decision that the order under Section 24 was not relevant for claiming adjustment against the maintenance to be awarded under Section 125. In my view, the decision in Ramesh Chander’s case (supra) is not an authority for the proposition that the plea of adjustment is not at all entertainable by the Magistrate while he awards maintenance under Section 125, Cr.P.C. That being so, the two decisions cited by Mr. Goswami cannot be categorised as per inquirium merely because of the fact that the Supreme Court decision in case of Ramesh Chander (supra) was not considered therein.

    11. In Gossai Ch. Das v. Beauty Das (supra) , it was contended in the revisional application filed before the High Court that the wife’s application under Section 125, Cr.P.C. was not maintainable since an application under Section 24 of the Hindu Marriage Act was pending before the Matrimonial Court concerned and that pending the disposal of the application under Section 24, the proceeding under Section 125 should remain stayed. Justice J.N. Hore, as his Lordship then was, held that a proceeding under Section 125 of the Code of Criminal Procedure, 1973 is an independent proceeding unaffected by the provisions of Sections 24 and 25 of the Hindu Marriage Act, and Sections 18 and 20 of the Hindu Adoption and Main tenance Act, 1956 and that it cannot be held that an application under Section 125 of the Code of Criminal Procedure is not maintainable simply became an order of alimony pendente lite has been passed under Section 24 of the Hindu Marriage Act, 1955 in a matrimonial proceeding between the parties, and that there is also no question of staying the proceeding under Section 125 of the said Code fill the disposal of the matrimonial suit. But his Lordship, at the same time, held that the amount paid as alimony pendente lite in the matrimonial suit by the husband to the wife may he adjusted against the maintenance payable under Section 125 and accordingly directed suitable modification of the Magistrate’s order under Section 125, Cr.P.C.

    12. In the unreported decision of our High Court in connection with the criminal revision NO. 2504 of 1995, cited by Mr. Goswami, it was urged on behalf of the revisionist husband that the Magistrate did not consider the interim maintenance which was granted to the wife in the matrimonial suit and has, accordingly, committed an error and his lordship, while dealing with the question of quantum of maintenance allowance, was of the view that the amount awarded by the Magistrate was liable to be reduced in view of the maintenance pendente lite granted in favour of the wife in the matrimonial suit, so long the order of maintenance pendente life in favour of the wife remained in force and allowed the husband’s plea of adjustment with liberty to the wife to make suitable application before the appropriate Court for modification of the quantum of maintenance, in the event of any change in the quantum of maintenance in the matrimonial suit or of the disposal of the suit itself.

    13. It may be useful here to refer to a Division Bench decision of our High Court presided over by A.M. Bhattacharjee, J. as his Lordship then was, , Geeta Chatterjee v. Probhat Kr. Chatterjee. The respondent-wife in the appeal before the High Court filed an application under Section 24 of the Hindu Marriage Act for maintenance pendente lite and expenses of the appeal against the appellant-husband. In the Court below, the husband did not contest the wife’s application for maintenance pendente lite and the Court passed an order directing the husband to pay to the wife Rs. 350/- as maintenance during the trial. Before the High Court in the appeal, however, the application by the wife for maintenance pendente lite and also for expenses for the appeal was seriously opposed by the husband-appellant on the ground that he has come to learn that the wife owns valuable lands in Calcutta and could not be regarded as one who “has no independent income sufficient for her support” within the meaning of Section 24 of the Hindu Marriage Act so as to be entitled to invoke that Section. The question arose as to whether in ordering maintenance pendente lite under Section 24, the Court shall have regard only to the income of the applicant and not to her or his asset or property. The High Court answered the question in the affirmative. It was of the view that the amount of Rs. 350/- ordered by the Court below, was quite reasonable. The High Court was also of the view that the husband should pay to the wife a sum of Rs. 500/- as expenses of the proceedings before the High Court. It was brought to the notice of the High Court during the hearing of the appeal that the wife obtained an order in her favour under Section 125 from the Criminal Court directing the husband to pay the wife Rs. 200/- per month and the High Court allowed the adjustment of the said sum of Rs. 200/- against the sum of Rs. 350/-. It directed the husband to pay to the wife a sum of Rs. 350/- after deducting therefrom the amount that he would be paying m compliance with the order of the Criminal Court. It is thus clear that the Division Bench allowed adjustment of the lower amount (Rs. 200/-) awarded by the Magistrate against the higher amount (Rs. 350/-) awarded by the Matrimonial Court.

    14. Reference may also be made to two other decisions of the Allahabad High Court on this point. They are reported in I (1985) DMC 175; Puspa Devi v. Anup Singh and I (1990) DMC 38, Khem Chand v. State.

    15. In I (1985) DMC 175 (supra), the wife filed an application before the Judicial Magistrate under Section 125, Cr.P-C. for maintenance allowance. During the Course of that proceeding, the husband filed an objection on the ground that in a divorce proceeding between the parties the wife was already getting monthly allowance. The Magistrate rejected the application of the opposite party-husband. Aggrieved by the order of the Magistrate, the husband filed an application before the Sessions Judge. The Sessions Judge dismissed the application under Section 125 on the ground that the applicant is already getting maintenance allowance in the divorce proceeding under Section 24 of the Hindu Marriage Act. Aggrieved by this order of dismissal, the wife came up in the revision before the High Court and it was contended on behalf of the applicant- wife that the allowance awarded under Section 24 is for a temporary period during the pendency of a divorce case and that the said allowance cannot be considered to be the maintenance allowance inasmuch as it covers the part of the expenses. The High Court observed that the proceeding under Section 125, Cr.P.C. and Section 24 of the Hindu Marriage Act are quite independent proceedings and the maintenance allowance under Section 24 is for a temporary period and that the order under Section 24 of the Hindu Marriage Act, cannot override the order of Section 125, Cr.P.C, But, at the same time, the High Court was of the view that the Magistrate while passing an order under Section 125 may give such direction so that the amount awarded by the Civil Court under Section 24 may be adjusted during such ‘period for which the order directing maintenance allowance under Section 24 subsists. Accordingly, the case was sent back to the Court of trial Magistrate for rehearing with the direction to give due weight to the order passed under Section 24, as indicated above.

    16. In the later decision of the Allahabad High Court in Khem Chand v. State and Anr. (supra), the High Court was hearing a revision by the husband directed against an order granting maintenance allowance to the wife under Section 125, Cr.P.C. and it was contended on behalf of the husband that he has already filed a petition for divorce and in that divorce proceeding, he has been directed to pay maintenance to the wife. The High Court directed adjustment of the amount paid towards maintenance in the matrimonial proceeding against the maintenance payable under Section 125, Cr.P.C. The Court held that double payment of maintenance is not intended by law and that if any money has been deposited towards the payment of maintenance in the divorce proceeding the same was liable to be adjusted in the payment of maintenance ordered under Section 125, Cr.P.C.

    17. In the Andhra Pradesh High Court decision in T. Rajender Singh v. Maya Devi, reported in 1996 Cr.L.J. 2384, which was cited by Mr. Talukdar, it was held that during the operation of the order of interim maintenance under Section 24 of the Hindu Marriage Act, the maintenance granted by the Criminal Court under Section 125, Cr.P.C. shall also continue to be paid and that both the orders of matrimonial Court and Criminal Court are required to be complied with till the final decision is rendered by the Civil Court and that it is only after the rights of the parties are finally decided, that the party can approach the Criminal Court under Section 127 of the Cr.P.C. for cancellation or variation of the order under Section 125. The question whether or not any adjustment between the two amounts-one awarded under Section 24 by the Matrimonial Court and the other awarded under Section 125 by the Criminal Court – would be permissible does not appear to have been specifically raised nor considered in the said decision and as such, this decision will not be of much avail to the opposite party on the question of admissibility of the p lea of adjustment which is confronting us in the present case.

    18. Thus, following the three decisions of our High Court referred to above, namely, Geeta Chatterjee v. Probhat Chatterjee, (supra); Gossai Ch. Das v. Beauty Das (supra) and the unreported decision in the case of Manoj Chowdhury v. Jharna Chowdhury as well as the two decisions of the Allahabad High Court reported in Puspa Devi v. Ann? Singh (supra), and Khem Chand v. State (supra), it can be safely held that the plea of adjustment is quite maintainable and the Supreme Court decision in Ramesh Chancier (supra) does not, in my opinion, militate against this view.

    19. The matter can also be looked at from another angle. Obviously, the object of Section 125 is meant to achieve a social purpose. The object is to prevent vagrancy and destitution and also to provide quick and summary remedy to a class of persons who are unable to maintain themselves. It is true that this is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution, as observed by the Supreme Court in the Ramesh Chander’s case (supra). But then, Section 125, Cr.P.C. can be invoked by a wife only when she is unable to maintain herself. The expression “unable to maintain” connotes that the wife, has no other means or source to maintain herself. Inability on the part of the wife to maintain herself is undoubtedly a sine qua non for the grant of maintenance allowance under Section 125, Cr.P.C. If a particular wife has some other means or source sufficient to maintain herself, there would be no point in awarding any further allowance in her favour so long such means and source continues to subsist. In the instant case, the wife has already obtained an order from the Matrimonial Court directing the husband to make payment of Rs. 700/- per month towards her own maintenance pendente lite under Section 24 of the Hindu Marriage Act and another order (the impugned order) from the Magistrate’s Court under Section 125, Cr.P.C. directing payment of a sum of Rs. 800/- per month by the husband towards her maintenance. It has not be contended on behalf of the wife-opposite party that the amount of Rs. 800/- that has been awarded by the Magistrate under Section 125, Cr.P.C. by the impugned order is not at all sufficient to meet the requirements of her maintenance according to her standard of life. She has not assailed the impugned order of the Magistrate with regard to the quantum of allowance that has been awarded by the impugned order. We can, therefore, take it for granted that, for the present, a sum of Rs. 800/- would be sufficient for her maintenance per month. Viewed from this angle, allowing the plea of adjustment, in such a case, would not in my opinion, militate against the object of Section 125, Cr.P.C. If, on the other hand, the husband petitioner’s plea of adjustment be negatived only on the ground that the order under Section 24 of the Hindu Marriage Act is a temporary order and not a final determination of the exact quantum to which the wife would be entitled as of right towards her maintenance allowance or on the ground that the Magistrate’s jurisdiction to grant maintenance allowance under Section 125 remains unaffected by the order under Section 24 of the Hindu Marriage Act, it would virtually mean saddling the husband-petitioner with a liability to comply with both the orders and make the double payment of maintenance allowance, irrespective of the question other actual requirements of her maintenance. I am afraid, such a course would not be in consonance with the fundamental concept of justice, equity and good conscience. The order under Section 24 may be temporary and not a final determination and it is true that if an order for permanent alimony is made under Section 125, it will automatically supersede the alimony pendente lite. But, if the amount of maintenance pendente life is discernible from the order under Section 24 and if the said amount is paid by the husband there is no reason for disallowing adjustment of such payments against the amount awarded under Section 125, even if the latter amount is quite sufficient for the wife’s maintenance. If such payment is temporary, the adjustment will also be temporary and will continue to be made as long as the payment would be made. The mere fact that the order under Section 24 is temporary cannot thus constitute a good ground for making claim for adjustment inadmissible if it is otherwise admissible for the purpose. Adjustment cannot, however, be allowed as a matter of course. Whether such a plea would be admissible would depend upon facts and circumstances of each particular case.

    20. Thus, having regard to the facts and circumstances of this case, I am inclined to hold that the amount paid by the petitioner-husband to the opposite party-wife towards her maintenance in pursuance of the order passed by the Matrimonial Court under Section 24 of the Hindu Marriage Act is liable to be adjusted against the amount payable under Section 125 of Cr.P.C. towards her maintenance.

    21. In such view of the matter, the impugned order is liable to be made subject to the modification to the effect that the amount paid as alimony pendente lite in the matrimonial suit by the petitioner-husband to the opposite party No. 2 be adjusted against the maintenance payable under the impugned order. In the result, the revisional application succeeds and is hereby allowed subject to the modification of the impugned order as directed above.