AKHIL CH BHOWMIK Vs. SHANTI RANI BHOWMIK

JUDGEMENT

(1.) This criminal revision is directed against the order dated 15-3- 2016 passed by the learned Judge, Family Court in Civil Misc. Case No.7 of 2013 declaring the petitioner as defaulter in not paying maintenance arrears to the respondent for a period of five months i.e. from 1-7-2015 to 30-11-2015 and directing him to pay the same on 23-4-2016.

(2.) The facts necessary for disposal of the case may be briefly notice at the outset. The petitioner is husband of the petitioner, who filed an application under Section 18 of the Hindu Adoption and Maintenance Act, 1956 ("the Act" for short) against him for granting maintenance allowance. The petitioner, however, denies that the respondent is his wife. Anyway, on 27-4-2006, the learned Judge, Family Court passed an order directing the petitioner to pay a sum of Rs. 3,000/- per month for the maintenance of the respondent and her son, namely, Pabitra Ch. Bhowmick, w.e.f. 1-4-2006. Subsequently, in the year 2013, the respondent filed another application under Section 25 of the Act for enhancement of the maintenance allowance at the rate of Rs. 3,000/- per month from Rs. 1,500/-to the respondent and her son. In other words, the maintenance allowance ordered hitherto was, if allowed, to be revised to Rs. 6,000/- for both the respondent and her son. The application was contested by the petitioner by filing his written objection. However, the learned Judge rejected the objection of the petitioner and passed the order dated 21-6-2013 directing the petitioner to pay Rs. 3,000/- to the respondent with effect from 1-6- 2013. The Commandant of the Battalion was directed to arrange deduction of Rs. 3,000/- from his salary and send the same to the respondent through her ban account on the 10th day of every English Calendar month. The petitioner was in the meantime dismissed from service as Havildar in the month of July, 2015 as he was found guilty of bigamy. When the petitioner failed to remit the maintenance allowance for the period from July, 2015 to November, 2015, which came to Rs. 15,000/-, the respondent filed an application before the learned Judge, Family Court under Section 128, CrPC for enforcement of the order of maintenance. The learned Judge, Family Court by the impugned order allowed the application, the portions whereof are reproduced herein below:

(3.) Aggrieved by the aforesaid order, this revision is now filed by the petitioner. Assailing the impugned order, Mr. S. Mahajan, the learned counsel for the petitioner, submits that though the application for maintenance was filed under the provisions of the Act, the order of maintenance wrongly passed under Section 127 CrPC cannot be executed under Section 128 CrPC. The contention of the learned counsel for the petitioner is that an order passed under Section 25(2) of the Act is executable only in accordance with the provisions of Code of Civil Procedure and not under Code of Criminal Procedure and the order passed under Section 128 CrPC for enforcement of the order passed under the Act is illegal and is not enforceable. He also points out that the petitioner was dismissed from service on the complaint made by the respondent and following his dismissal from service, he is now rendered unemployed without any earning and is, therefore, not in a position to pay the maintenance allowance. On the other hand, Mr. N. Majumder, the learned counsel for the respondent, defends the impugned order and submits that no substantial prejudice has been caused to the petitioner by the impugned order by this mismatch. He, therefore, strenuously urges this Court to dismiss the criminal revision and direct the respondent to pay up the arrears without any loss of time.