RAMPADA BISWAS Vs. DOLLY MITRA

JUDGEMENT

(1.) The petitioner being the husband of opposite party No. 1 has preferred this revisional application read with Section 482 of the Criminal Procedure Code praying for setting aside the order dated 24th of August, 1994 passed by the Chief Judicial Magistrate, Murshidabad in Misc. Case No. 80(iv) of 1988 whereby there was an award of Rs. 750/ - per month by way of maintenance on an application preferred under Section 125, Criminal Procedure Code and the order was given effect to from the date of presentation of the application under Section 125, Criminal Procedure Code namely 20th March, 1987.

(2.) The short history which has given rise to the application under Section 125, Criminal Procedure Code is as follows: The marriage between the parties took place on 27th of February, 1985. On 15th February, 1986, the present petitioner challenged the validity of marriage by resorting to a matrimonial suit with a prayer for annulling the marriage under Section 12(1) (c) of the Hindu Marriage Act. In March, 1986, the matrimonial suit was transferred to the Court of District Judge at Murshidabad on an application by the petitioner who apprehended physical violence from the opposite party No. 1. On 15th of March, 1987, the District Judge, Murshidabad passed an interim order of alimony at the rate of Rs. 300/ - per month. On 20th of March, 1987, the opposite party No. 1 preferred an application under Section 125, Criminal Procedure Code before the Chief Judicial Magistrate, Krishnanagar, Nadia praying for maintenance at the rate of Rs. 500/ - per month and also succeeded to get an. ex parte order of interim maintenance at the same rate on the date of filing itself. On 22nd of April, 1988, the interim maintenance passed by the Chief Judicial Magistrate was saved by the Chief Judicial Magistrate, Nadia on the ground that the petitioner was paying alimony to the extent of Rs. 300/- per month in the Matrimonial Suit. The prayer made on the same day by the petitioner for stay of the proceeding under Section 125, Criminal Procedure Code was however refused. On 23rd of August, 1988, a move was made before the High Court against the Order dated 22nd of April, 1988, but it was rejected with the observation that the petitioner could take recourse to Section 127, Criminal Procedure Code. On' 31st of August, 1988, the Qistrict Judge, Murshidabad annulled the marriage by decreeing the Matrimonial Suit with the observation that there was concealment of age by the opposite party No. 1 who had practised fraud and deception on the petitioner thereby attracting provisions of Section 12(1) (c) of the Hindu Marriage Act. On 20th of November, 1988, after statutory period for preferring appeal was over the petitioner contracted a second marriage. The opposite party No. 1 in the meantime preferred an appeal against the decree in the Matrimonial Suit and got an order of stay from this Court on 20th of April, 1989. On 24th of May, 1989, the opposite party No. 1 filed an application before the Chief Judicial Magistrate, Nadia for vacating the stay order earlier granted by him but the prayer was refused. A prayer by the petitioner for dropping of proceeding under Section 125, Criminal Procedure Code was however refused by the Chief Judicial Magistrate. Both the petitioner and the opposite party No. 1 moved this Court on 3rd April, 1990 against the order passed by the Chief Judicial Magistrate, Murshidabad at the instance of the petitioner. On 10th of July, 1990, the opposite party No. 1 prayed for recall of the order passed by this Court on 3rd of April, 1990 and also for stay of transfer, both of which were rejected. On 24th of August, 1994, Chief Judicial Magistrate, Murshidabad passed an award of maintenance at the rate of Rs. 750/- per month with retrospective effect from 20th of March, 1987 and Rs. 5,000/- towards litigation cost.

(3.) The grounds taken in the revisional application amongst others are that the Trial Court did not consider the fact that the opposite party No. 1 was a practising Advocate inheriting the Chamber of her father, himself a renowned Advocate apart from other incomes, that the Trial Court relied more on surmises and conjectures than on the materials on record, that a maintenance to the extent of more than the claim of the opposite party No. 1 in her application has been awarded, that the implication of decision in the Matrimonial Suit has not been taken into consider- ation by the Trial Court.