KUMKUM DAS Vs. BISWARANJAN DAS

JUDGEMENT

(1.) I have heard the learned Advocates representing the petitioner and also the opposite party husband. The brief fact which was given rise to the present revisional application under Section 482, Criminal Procedure Code is that the petitioner wife in course of a proceeding under the Hindu Marriage Act was awarded certain maintenance by way of interim alimony under Section 24 of the Hindu Marriage Act. Thereafter she resorted to an application under Section 125, Criminal Procedure Code for maintenance and that application was allowed on contest. Thereafter there was an application under Section 127, Criminal Procedure Code by the opposite party husband which application was rejected by the learned Magistrate. The husband did not come up against either the order passed under Section 125, Criminal Procedure Code or the order passed under Section 127, Criminal Procedure Code. Since there was no payment in terms of the order under Section 125, Criminal Procedure Code, the wife resorted to an execution proceeding in course of which by order dated 5th April, 1997, the learned Magistrate directed the husband to pay maintenance as passed under Section 125, Criminal Procedure Code. On the basis of the said revisional application the learned Sessions Judge while admitting the same stayed the order dated 5.4.1997 passed by the learned Magistrate. The present application preferred by the wife as against the order dated 7th July, 1997 passed by the learned Sessions Judge which the operation of the order dated 5.4.1997 of the learned Magistrate was stayed.

(2.) It is submitted by the learned Advocate appearing for the petitioner that the opposite party husband did not challenge either the order under Section 125, Criminal Procedure Code or the order under Section 127, Criminal Procedure Code before any higher Forum; but since he was not paying maintenance in terms of the order under Section 125, Criminal Procedure Code, direction was given by the learned Magistrate to make payment in terms of the said order.

(3.) It is submitted that when the vires of the original order is not challenged and when no step was taken for rejecting the application of the husband under Section 127, Criminal Procedure Code, the only conclusion would be that the opposite party husband is bound to make payment in accordance with the order under Section 125, Criminal Procedure Code and as such the learned Sessions Judge was not right in staying the impugned order.