SHYAMA CHAKRABORTY Vs. SUMITA CHAKRABORTY

JUDGEMENT

(1.) Short point for determination in this revisional application is whether a proceeding started at the instance of a wife under section 125, Code of Criminal procedure claiming maintenance against her husband is maintainable if an order in favour of the wife has been made under section 24 of the Hindu Marriage Act in a matrimonial suit between the parties whereby the husband has been directed to pay alimony pendente lite at the rate of Rs. 500/- per month to his wife. In the court below the petitioner husband had raised this contention but as the learned Magistrate has found that the application under section 125 of Cr. P.C. was still maintainable, the husband has come up in revision.

(2.) The learned advocate for the petitioner has urged that since the opposite party was already. jetting under order of the Matrimonial Court what the learned Magistrate could award at the maximum, the application under section 125, Cr. P.C. was incompetent. Section 125, Cr. P.C. confers jurisdiction upon a Magistrate to make an order in appropriate circumstances for payment of a monthly allowance by the husband to the wife who is unable to maintain herself not exceeding Rs. 500/ per month. If, therefore, in spite of the order under section 24 of the Hindu Marriage Act in favour of the Wife, she is unable to maintain a standard of living which is neither luxirious nor penurious but modestly consistent with the status of the family, there is no reason why an order under section 125, Cr. P C directing the husband to pay a monthly allowance to the wife should not be made by the Magistrate. In other words, although the learned Magistrate in making an order under section 125, Cr. P.C may take note of the amount ordered to be paid to her under section 24 of the Hindu Marriage Act, he cannot; hold, without determination of her needs and requirements according to law, that the proceeding. under section 125, Cr. P.C. is incompetent. The contention of the learned advocate for the petitioner proceeds an the assumption that the Matrimonial Court has finally determined the total needs of the wife at Rs. 500/- per month which is binding on the learned Magistrate and, therefore, he cannot make an order for payment of any further maintenance. This is just not the position in law and it cannot be successfully urged that the amount determined by the Matrimonial Court as payable by the husband to the wife under section 24 of the Hindu Marriage Act is an adjudication of her -needs and requirements which has been very clearly laid down by the Supreme: Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, AIR 1978 SC 1807. In that case it was urged before their Lordships that the civil court's determination of the quantum under section 24 of the Hindu Marriage Act was entitled to serious weight and the criminal court in its summary decision under section 125 Code of Criminal Procedure would fall into an error in ignoring the same. Krishna Iyer J. delivering judgment for the court had observed that this point merited reflection but deserved rejection because the direction by the civil court was not a final determination but it was only an incidental one and not a comprehensive adjudication. Therefore, barring marginal relevance for the Magistrate, it does not stand in the way to award a higher maintenance. This belong the law of the land as pronounced by the Apex Court of the country, the petitioner cannot be heard to say that since he was already paying under section 24 of the Hindu Marriage Act what the learned Magistrate could award in the maximum, the proceeding before him was not maintainable.

(3.) For reasons stated above there is no merit in the revisional application which is, therefore, rejected. Interim orders are vacated and the Learned Magistrate is directed to dispose of the proceeding before him with utmost expedition in accordance with the provisions of law. Application rejected.