ARINDAM MITRA Vs. SUBHOSREE MITRA

JUDGEMENT

(1.) The petitioner is the opposite party/husband in Case No.ACM 42 of 2007 under Sec. 125 of the Code of Criminal Procedure. ACM 42 of 2007 was finally disposed of vide judgment dtd. 3/9/2021 by the learned Additional Chief Judicial Magistrate Alipore, South 24 Parganas directing the petitioner/husband to pay maintenance allowance at the rate of Rs.30,000.00 per month in favour of the opposite party/wife and Rs.20,000.00 per month to her minor child, total being Rs.50,000.00per month along with one time litigation cost at the rate of Rs.30,000.00per month.

(2.) It is contended on behalf of the petitioner that the opposite party has exercised beneficial legislation under Sec. 125 of the Cr.P.C in securing benefits for herself to which she is otherwise not entitled to in accordance with law. It is contended by the petitioner that the opposite party/wife is a practicing Advocate and she has her independent source of income. Therefore, she is not entitled to get any maintenance allowance from the opposite party. It is further contended by the petitioner that the learned Magistrate in his impugned judgment clearly held that trial of the maintenance case, i.e., ACM 42 of 2007 was delayed mainly due to dilatory tactics adopted by the petitioner. In spite of such finding the learned Magistrate committed error in granting litigation cost to the tune of Rs.30,000.00 in favour of the opposite party. Petitioner further contends that the learned Magistrate acted illegally and with material irregularity in granting maintenance allowance in favour of the opposite party from the date of filing of the application. It is also alleged by the petitioner that the opposite party/wife filed false affidavit-of-assets and liabilities only to get maintenance allowance from the petitioner. The trial court failed to invoke the provisions of Order X of the Code of Civil Procedure or 165 of the Evidence Act for assessing the truthfulness of the affidavit filed by the opposite party/wife. It is also stated by the petitioner that the aforesaid maintenance case was once dismissed for default. Subsequently, on the application filed by the opposite party the same Misc Case was restored.

(3.) The aforesaid maintenance case was disposed of by the learned Additional Chief Judicial Magistrate at Alipore on 3/9/2021. During the pendency of the said maintenance case, the opposite party/wife filed an application for execution under Sec. 125(3) of the Code which was registered as M. Execution Case No.455 of 2019 praying for realization of arrear maintenance from December, 2017 to July 2019.