IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
The Hon’ble Justice Jay Sengupta
C.R.R. 340 of 2018
Mitra Maity Anr.
For the petitioner : Mr. Murari Mohan Das
Mr. Sk. Musior Rahman
Ms. Reshmi Rehman
For the Opposite party : Ms. Rita Patra
For the State : Mr. Anirban Banerjee
Heard on : 04.09.2018 and 27.09.2018
Judgment on : 30.11.2018
Jay Sengupta, J.:
The petitioner has challenged an order dated 11.01.2018 passed by the
Learned Judicial Magistrate, 3rd Court, Diamond Harbour, South 24 Parganas in
M. Ex. Case No. 170 of 2016 on an application under Section 125 (3) of the Code
of Criminal Procedure, thereby rejecting the petitioner’s application and, inter
alia, holding that the execution case could not be dropped on the ground of
payment of alimony in a civil proceeding.
2. The Learned Advocate appearing on behalf of the petitioner submitted that
on 15.02.2006, the Learned Judicial Magistrate, 3rd Court, Diamond Harbour,
South 24 Parganas directed the present petitioner/husband to pay maintenance
allowance to the present opposite party/wife under Section 125 of the Code at
the rate of Rs. 1500/- per month in Case No. M. 363/99. According to the
Learned Advocate, this sum was enhanced from time to time, lastly to Rs. 4500/-
per month on 31.03.2010 in Misc. Case No. 2/2008. In the meantime the
husband filed a suit for divorce. On 14.03.2011 the petitioner was directed to pay
maintenance pendente lite under Section 24 of the Hindu Marriage Act to the
opposite party no. 2 at the rate of Rs. 5000/- per month along with a litigation
cost by the Learned Additional District Judge, 4th Court, Alipore, South 24
Parganas in Misc. Case No. 48 of 2008. The Learned Advocate contended that as
the Learned Civil Court granted such sum after recording that his wife was
already getting Rs. 4500/- per month as maintenance under Section 125 of the
Code, the two sums have to be adjusted and only the higher sum of Rs. 5000/-
per month shall be payable.
3. The Learned Advocate appearing on behalf of the opposite party/wife
submitted that Rs. 5000/- as maintenance pendente lite was to be paid in
addition to Rs. 4500/- payable under Section 125 of the Code per month. She
submitted that in any event, an execution Court cannot travel beyond the main
4. I have heard the submissions of the Learned Advocates for the parties and
have carefully perused the revisional application along with the annexure.
5. It further appears that on 08.11.2017 in Mat. Ex. Case No. 1/12 the
Learned Civil Court rejected a petition dated 24.09.2013 filed by the husband
holding that the order dated 14.03.2011 passed by that Court was very much
clear that the alimony order was passed excluding the maintenance awarded
under Section 125 of the Code. It does not appear that this order was reversed or
was even challenged by the present petitioner.
6. In the normal course, such sums awarded by orders passed independently
in different proceeding on maintenance are adjusted with each other. But, from a
careful reading of the order dated 14.03.2011 passed by the Learned Civil Court,
it appears that the order of maintenance pendente lite was indeed passed in
addition to the sum awarded under Section 125 of the Code.
7. In any event, an executing Court normally cannot travel beyond the order
passed by the original Court.
8. In view of the above, I do not find any illegality in the impugned order.
There is no merit in present revisional application and hence, the same is
dismissed. However, there shall be no order as to costs.
9. A copy of this judgment shall be sent forthwith to the Learned Court below
by Special Messenger.
10. Urgent photostat certified copies of this judgment may be delivered to the
learned Advocates for the parties, if applied for, upon compliance of all
(Jay Sengupta, J)