SAILENDRA NATH GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The instant application under Section 482 of the Criminal Procedure Code is directed against the order dated 30-11-96 passed by the ld. Judicial Magistrate, Seventh Court, Uluberia in Misc. Case No.42 of 1995.

(2.) The said case arose out of an application filed by the opposite party No. 2, Anita Ghosh under Section 125 Cr. P.C. The petitioner is her husband. Their marriage was solemnised according to Hindu rites and customs on 18-2-92. After the marriage, they lived together in the matrimonial home for some time. The opposite party No. 2 being infertile was undergoing medical treatment. There was no issue born out of their marriage. The opposite party No. 2 abandoned her materimonial home on 30-10-94. The petitioner filed a matrimonial suit for divorce against the opposite party No. 2, being Mat. Suit No. 321 of 1994, in the Second Court of Additional District Judge, Hoogly. The opposite party No. 2 lodged a complaint on 25-1-95 in Chandernagore Court alleging matrimonial cruelty against the petitioner. The opposite party No. 2 filed an application under Section 125 of the Criminal Procedure Code praying for maintenance allowance against the petitioner in the Court of Sub-divisional Judicial Magistrate. Uluberia. Both the matrimonial suit and the complaint case are pending. In the matrimonial suit, the opposite party No. 2 had obtained an order being order No. 17 dated 8-7-96, directing the petitioner to pay alimony pendente lite at the rate of Rs. 700/- per month as well as litigation cost of Rs. 1500/- to the opposite party No. 2 and the petitioner has been paying the alimony pendente lite in terms of that order. During the trial of the case under Section 125 Cr. P.C. the petitioner gave evidence in support of the payment of alimony at the rate of Rs. 700/- per month to the opposite party No. 2. But the ld. Magistrate by his impugned judgment and order disposed of the case under Section 125 Cr. P.C. awarding maintenance allowance at the rate of Rs. 800/- in favour of the opposite party No. 2 without, however considering the fact that the opposite party No. 2 was already receiving a sum of Rs. 7,00/- towards alimony pendente lite by virtue of the order passed in the matrimonial suit, as a result of which, the opposite party No. 2 is getting maintenance allowance from the petitioner twice a month.

(3.) Mr. A. Goswami, the ld. counsel appearing for the petitioner, contended that the ld. Magistrate ought to have made provision in the impugned order for adjustment of Rs. 700/-, the amount which the opposite party No. 2, is getting by way of maintenance pendente lite in terms of order dated 8-7-96 passed in the Matrimonial Suit against the amount of Rs. 800/- which he awarded in her favour towards, her maintenance allowance. If this adjustment is not allowed, the petitioner will be unjustly saddled with a liability to make payment of maintenance allowance to the opposite party No. 2, twice a month. Accordingly, Mr. Goswami wants this Court to modify the impugned order by making provision for adjustment of the maintenance pendente lite.