SUSHIL MONDAL Vs. SHIBDAS PATRA

JUDGEMENT

(1.) AS the facts and points of law involved in these revisional applications are identical, I intend to dispose of both the revisional applications by this common judgment and order.

(2.) FACTS of the case as it appears from the contents of the revisional applications are that, Sravani Patra (since deceased) was married with Shibdas Patra (petitioner of C. R. R. No. 748/03) on 8.2.88. Out of their wedlock a male child was born to the couple namely Snehasis Patra @ Suchasis Patra. Subsequently, Sravani being unable to bear the torture of her husband and other in -laws committed suicide on 31.10.91 and on the basis of her unnatural death a police case was started which ended in submission of chargesheet. The trial that followed in Sessions Trial No. 8/July/95, the husband Shibdas Patra @ Shibu was convicted and he preferred an appeal and was enlarged on bail during pendency of the appeal. The child born to Shibdas and Sravani was then aged two years when Sravani committed suicide and the said child was taken to his maternal grandfather's house (petitioner of C. R. R. No. 961/03) and since then the said child is being maintained in his maternal grandfather's house. The father of the child namely Shibdas Patra did not take any information of his son nor sent any money for the maintenance of his son. The maternal grandfather of the child Sushil Mondal has retired from service in 1997 and he finds it difficult to maintain the said child. Accordingly, he filed an application under Section 125 of Criminal Procedure Code, against the father which was registered as Misc. Case No. 82 of 2002. In the said case Sushil Mondal submitted prayer for interim maintenance of the child. After hearing the contention of both parties the learned Judicial Magistrate, 7th Court, Howrah allowed the prayer for interim maintenance by order dated 3.3.2003 and directed that the father Shibdas Patra shall pay interim maintenance @ Rs. 800/ - per month to his minor son from the date of the order.

(3.) MS . Pratima Mishra, learned Advocate for the petitioner of C. R. R. No. 748/03 contended that the petitioner being father has already filed an application for custody of his minor son Snehasis Patra and it has been registered as Act VIII Case No. 23 of 2002 (Act VIII of 1890). The said case for custody of the child is pending and being father and natural guardian he is entitled to take custody of his minor son. If the minor son is given to his custody he is competent to maintain his son and no question for awarding maintenance arises. The learned Magistrate did not assess the income of the father properly and also did not consider whether the father refused to pay maintenance to his own minor son. There was nothing before the learned Magistrate to reveal that this petitioner being father refused to pay maintenance to his own son. When the case for custody of his minor son is pending the proceeding under Section 125 of Criminal Procedure Code for maintenance of the said, minor son should be stayed. Learned Magistrate acted illegally by not staying the proceeding under Section 125 of Criminal Procedure Code and also granting interim maintenance in favour of the maternal grandfather for the maintenance of minor son.