KAZI MD. FARIDULLA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE subject matter of challenge in this criminal revision is a proceeding under Section 125 of the Criminal Procedure Code now pending before the learned Judicial Magistrate, Bolpur, Birbhum being Misc. Case No. 16 of 2009.

(2.) THE learned Counsel for the petitioner submits that the maintainability of the same was challenged before the trial court on two folds grounds. Firstly, the opposite party no.2 being a divorced Muslim woman, is not entitled to any maintenance under Section 125 of the Criminal Procedure Code and Secondly, earlier to the impugned proceeding the opposite party no. 2 claiming maintenance from the petitioner instituted another proceeding under Section 125 of the Criminal Procedure Code and the same has been finally disposed of awarding maintenance @ Rs.160/ - for herself and Rs.40/ - for her minor child and the said order is still in force. It is further contended that if she is now intended to get the quantum of maintenance enhanced her remedy does not lie by filing a fresh application under Section 125 of the Criminal Procedure Code and then in that case she has to take recourse to Section 127 of the Code of Criminal Procedure. Lastly, it is contended that already the dower amount has been fixed by a competent civil court where the opposite party wife was a party, obviously therefore she is a divorced Muslim wife and therefore no application for maintenance invoking Section 125 of the Criminal Procedure Code is maintainable at her behest.

(3.) IT is true, if already the opposite party has obtained an order of maintenance in connection with a proceeding under Section 125 CrPC, during the subsistence of the said order, no similar proceeding afresh is maintainable. It appears from the record the question of maintainability was raised and finally decided by the court below by its order passed on April 20, 2010, therefore, in May, 2011 when the said order is challenged in this criminal revision same is hopelessly time barred. Therefore, those issues cannot be gone into in this criminal revision.