DEB SANKAR BANERJEE Vs. AVE BANERJEE (BHAWAL)

JUDGEMENT

(1.) The instant criminal re-visional application under section 482 of the Code of Criminal Procedure is for quashing Misc. Execution Case No. 1/93 which arose out of the order passed by learned SDJM, Durgapur on 8.12.88 in Misc. Case No. 90/84 and this is at the instance of the petitioner-husband.

(2.) The case of the petitioner-husband was in brief that he married the O.P. on 16.6.72 according to Hindu rites and customs and out of their wedlock a daughter was born on 14.8.74. Unfortunately the marriage was not a happy one inasmuch as the O.P. was involved in adultery with one T.N. Gupta and on one occasion the O.P. drove the petitioner out the house. The petitioner is thus living separately. On 18.4.84 the O.P. filed an application under section 25 of the Guardians and Wards Act before the District Judge. Burdwan and prayed for custody of the daughter and this gave rise to Misc. Case No. 88 of 1984. But such a prayer was rejected by the learned Court concerned on the ground that the daughter was prosecuting her studies well in a Girls' Hostel under the supervision of the Petitioner. Again, according to the petitioner the O.P. filed an application under section 125 of the Code of Criminal Procedure on 23.4.84 before learned SDJM. Durgapur Burdwan, and this gave rise to Misc. Case No. 90/84. During the pendency of the said Misc. Case under section 125, Cr. P.C., the petitioner-husband filed an application under section 27 of the Special Marriage Act for dissolution of his marriage with the O.P. wife. In the said MAT Suit No. 39/86, the learned Additional District Judge, 3rd Court, Burdwan passed a decree of divorce on 7.6.88. However, in the maintenance case under section 125, Cr.P.C., learned SDJM. Durgapur passed an order allowing maintenance at the rate of Rs. 300/- per month to the O.P. wife from 23.4.84. The petitioner came to learned that after the dissolution of the marriage between him and the O.P. the latter again married one Shymal Bhawal and out of their wedlock a daughter was born in 1991. The Petitioner also came to know that the O.P. filed an Execution Case being Misc. Execution Case No. 1/93 before learned SDJM, Durgapur for realization of a sum of Rs. 31,200/- being the arrear maintenance for the period from 23.4.84 to 23.12.92. The Petitioner came to learn that the said Executing Court has issued warrant of arrest against the petitioner for realisation of the maintenance amount. According to the petitioner, the said Misc. Execution Case No. 1/93 is not at all maintainable being barred by the law of limitation and also due to his obtaining the decree of divorce against the O.P. wife on 7.6.88 and also due to O.P.'s re-marriage with another person. Hence the prayer for quashing the Misc. Execution Case No. 1/93 now pending before learned SDJM Durgapur.

(3.) The only question requiring consideration in this hearing was whether Misc. Execution Case No. 1/93 should be quashed or not as prayed for by the petitioner.