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Execution of orders under Section 24 HMA in terms of CrPC unheard of; orders of ADJ purportedly acting as Magistrate set aside

In the High Court at Calcutta

Civil Revisional Jurisdiction C.O. No.1903 of 2018

Taraknath Mukherjee
Versus
Sandhya Mukherjee (Sarkar)

Mr. Kushal Paul….for the petitioner.

Mr. J. Rahaman….for the opposite party.

The present challenge has been preferred by the husband against an order whereby the Additional District Judge, Second Court at Raiganj, while taking up an execution case in connection with an alimony order passed under the Hindu Marriage Act, suffered from an identity crisis and acted as a Magistrate to invoke the provisions of Section 125(3) of the Code of Criminal Procedure and other allied provisions, to issue a distress warrant against the husband upon finding that it would be proper to do so, directing the Collector to realize the maintenance allowance as arrears of land revenue.

It is unheard of that an order passed under Section 24 of the Hindu Marriage Act would be executed by taking resort to the provisions of the Criminal Procedure Code.

Learned counsel for the petitioner is justified in arguing that such exercise of authority was entirely without jurisdiction. However, it appears that to alleviate the financial difficulties of the wife, the husband complied with a previous order dated July 3, 2018 passed in this revisional application and paid an amount of Rs.1,11,800/- on an ad hoc basis to the wife, without prejudice to the rights and contentions of the parties.

Learned counsel for the opposite party, while defending the impugned order, submits that although the wrong provisions of law were quoted, the Additional District Judge had ample power to pass the impugned order and as such the impugned order ought not to be set aside.

In this context, learned counsel for the opposite party cites an apparently unreported judgment dated September 19, 2016 passed by a co-ordinate Bench of this Court in C.O. No.3510 of 2016 (Harekrishna Dey Vs. Ashok Kumar Roy and another), in support of the proposition that nomenclature of an application was not a determinant factor. If a court has power to do something irrespective of nomenclature or caption of the connected application, the court could still exercise such power.

Upon hearing learned counsel for both sides, it appears that this is not a case where the Additional District Judge exercised a power vested in the said court despite the caption of the connected application being wrong. This is a case where the Additional District Judge consciously invoked the powers conferred on the Magistrate under certain sections of the Criminal Procedure Code while executing an order of alimony under Section 24 of the Hindu Marriage Act, passed by a competent civil court.

The Additional District Judge did not even proceed on the premise that the caption of the application was wrong, but the Additional District Judge was exercising the power vested in that court in law.

On the contrary, this is a reverse case, where the execution application was filed under the correct provisions of law, but the Additional District Judge consciously resorted to powers which have no nexus with the proceeding under consideration, but are conferred on a Magistrate and not an Additional District Judge at all.

As such, the impugned order was devoid of inherent jurisdiction and cannot stand a moment’s scrutiny.

Accordingly, C.O. No.1903 of 2018 is allowed on contest, thereby setting aside the impugned order and directing the Additional District Judge to dispose of Matrimonial Execution Case No.1 of 2017 pending in the said court in accordance with the appropriate provisions of law, in the light of the observations made above. In view of the inherent urgency implicit in the matter, the Additional District Judge is requested to dispose of such proceeding within two working months from the date of communication of this order to the said court.

There will be no order as to costs.

(Sabyasachi Bhattacharyya, J. )

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