SIMA GHOSH Vs. ASHIM BOSE

JUDGEMENT

(1.) This revisional application was preferred by the petitioner challenging an order dated 07.12.2016 passed by the Learned Chief Judicial Magistrate in-charge Barasat, North 24 Paraganas in Misc Case No. 143/2016 under Section 127 of the Code of Criminal Procedure arising out of Case No. 48/2009 under Section 125 of the Code, thereby rejecting the petitioner's application for staying further proceedings in the case on the ground that the opposite party had defaulted in making of payment of arrears of maintenance allowance.

(2.) The Learned Advocate appearing on behalf of the petitioner submitted as follows. The couple got married on 12.06.2008. On 05.08.2008, the opposite party instituted a suit for restitution of conjugal rights. On 12.03.2012 it was withdrawn and a counterclaim was accepted as a cross suit. The opposite party contested the counterclaim and denied the allegations including that of torture by him and even the factum of solemnization of marriage following Hindu rights and rituals. On 18.08.2018 the Learned Civil Judge ordered that the counterclaim was decreed on contest and the marriage between the present petitioner and the present opposite party solemnized on 12.06.2008 was annulled from the date of the judgment. In the meantime in 2009 the petitioner had filed an application under Section 125 of the Code claiming maintenance allowance from the opposite party. An interim maintenance allowance of Rs. 2000/- per month was initially granted. But, finally the application under Section 125 of the Code was rejected. Upon a revisional application preferred by the petitioner in CRR No. 542/2011, on 27.09.2013 this Court was pleased to affirm the order of the Learned Magistrate. Thereafter the petitioner challenged this order. On 19.01.2015 the Hon'ble Apex Court was pleased to set aside the order of the Hon'ble High Court and directed that the present opposite party to pay maintenance at the rate of Rs. 7500/- per month to the petitioner from the date of filing an application for maintenance. It was also directed that the arrears of maintenance shall be paid in equal quarterly instalments within a year. The present opposite party did not comply with the order passed by the Hon'ble Supreme Court for which the petitioner had to file a number of execution cases claiming arrears of maintenance from the opposite party. The petitioner was seeking that the proceeding under Section 127 of the Code initiated by the present opposite party pursuant to an order passed by the Learned Civil Court annulling the marriage ought to be stayed till the arrears of maintenance were paid.

(3.) The Learned Advocate appearing on behalf of the opposite party submitted as follows. The decision of a Civil Court is binding on a Criminal Court. The petitioner failed to prove cruelty by the husband, which was a foundation of the proceeding under Section 125 of the Code. A proceeding under Section 127 of the Code filed by the husband ought not to be stayed simply because the execution cases in respect of the arrears of maintenance were pending.