ALOKE KUMAR BISWAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) HEARD Ms. Sanghita Chatterjee, the learned Advocate, appearing on behalf of the petitioner-husband as well as Mr. Pushpal Satpathi, the learned Advocate, appearing on behalf of the wife-opposite party No. 2. Perused the impugned order and other materials on record.

(2.) MS. Chatterjee, learned Advocate, appearing on behalf of this petition challenged the order passed by the learned Additional Chief Judicial Magistrate, Barrackpore in connection with a proceeding under Section 125 of the Code of Criminal Procedure granting interim maintenance at the rate of Rs. 800/- per month of the wife-opposite party. Ms. Chatterjee challenged the said order basically on the ground that although admittedly the marriage between the petitioner and the opposite party took place on April 18, 2006 but on that day her marriage with one Ashim Chatterjee, solemnized on 12th of December, 2004, was subsisting which was subsequently dissolved by virtue of decree of divorce on mutual consent passed by the learned Additional District Judge, Fast Track, 4th Court, Barrackpore in connection with Matrimonial Suit no. 523 of 2006 on 21st November, 2006. The certified copy of the order is produced in Court and be kept with the records of this case. This position has not been disputed by Mr. Sathpathi appearing on behalf of the opposite party no. 2. Ms. Chatterjee further submitted that in view of the aforesaid admitted position, it is absolutely clear and beyond all controversy that on the date the petitioner and the opposite party married each other, the opposite party/wife having his legally married husband alive. Thus, there cannot be any lawful marriage between them and she is not entitled to any maintenance from the petitioner as his legally married wife.

(3.) ON the other hand, Mr. Sathpathi submitted before this Court that the petitioner has not disputed the married and has failed an application for declaration which is now pending before the appropriate Court for a decree of nullity and until and unless the necessary order is passed therein his client is entitled to maintenance because according to Mr. Sathpathi in a case relates to a proceeding under Section 125 of the Code of Criminal Procedure strict proof of marriage is not necessary.