bani (xc) 08 March 2012

Advice

As per the below mentioned case can any body help in stating which lawyer is better? Petitioner's or Defendent's? Its a very popular case of 2004.

Pls help

Judgement

P. N. Sinha, J.

1. This revisional application under Section 482 of Code of Criminal Procedure (hereinafter called Cr. P. C.) read with Article 227 of the Constitution of India is directed against the order No. 3 dated 3.9.2003 passed by the learned Judge, Family Court, Calcutta in Misc. Case No. 159 of 2003. The learned Judge by the impugned order rejected the application filed by the present petitioner challenging maintainability of the petition under Section 125 of Cr. P. C. filed by O. P. No. 1 during pendency of MAT suit between the parties and pendency of Section 24 of the Hindu Marriage Act (hereinafter called H.M. Act) petition filed by the wife in the matrimonial suit claiming maintenance pendente lite.

2. Mr. Tarun Banerjee, learned senior advocate of the petitioner contended that Section 24 of the H.M. Act application filed by the wife O.P. No. 1 is almost at the concluding stage in the MAT suit now pending in the Court of learned Judge, Family Court, Calcutta. Recording of evidence of the wife has been completed and evidence for this petitioner is pending. The O.P. No. 1 has already claimed maintenance in the Section 24 H.M. Act petition. Subsequently, thereafter her petition under Section 125 of Cr. P. C. is with mala fide intention and proceeding of the Section 125 Cr. P. C. application should be kept in abeyance till disposal of the Section 24 of H.M. Act application as well as MAT suit. The learned Judge without applying judicial mind by the impugned order without applying judicial mind by the impugned order dated 3.9.2003 rejected the application of petitioner and failed to exercise his jurisdiction properly. Accordingly all further proceeding of Misc. Case No. 159 of 2003 under Section 125 Cr. P. C. should be stayed.

3. Mr. Pradip Kr. Roy, learned advocate appearing for the O.P. No. 1 contended that there is no bar to file Section 125 Cr. P. C. application during pendency of the matrimonial suit. Provisions of Section 125 of Cr. P. C. was created for a different purpose and aim behind it was social justice so that neglected and deserted wives get some maintenance amount expeditiously from their husbands. Both the proceedings of Section 125 Cr. P. C. and Section 24 of H.M. Act are different. The settled principle is that the amount granted by Civil Court under Section 24 of the H.M. Act and the amount of maintenance granted by Magistrate under Section 125 of Cr. P. C. should be adjusted. Therefore, there is no merit in the application and it should be dismissed

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2 Replies

Tajobsindia (Senior Partner ) 08 March 2012

@ Author

I would rather say that among my ld. brothers the cake goes to this unfortunate husband to push his envelop little further than ordinary litigating husband. Atleast he tried and thus roped in a ld. advocate to bring his point of view across.

Now tomorrow another case scenario may reach HC praying that wife filed first S. 24 HMA and then S. 125 CrPC and both cases are at advance stages though in different Court and now it shall be a must that proceedings under DV Act praying for maint. to her be stopped ! Now the OP 1 ld. Adv. will still say that provisions of DV Act is designed as a special relief to battered women which are prevalent in Indian society and is to give them quickeeeeeeeeeeeer relief so I am expecting your next brother may ask the same question on who is now better ld. advocate J

Bottom line Sir / Madam (as thy name @ Bani is little difficult to predict gender wise) a wife is adventurous and we have made her little more adventurous today and today she is privileged enough to run simultaneous proceedings in ordinary Civil Courts under S. 24 HMA in a Mahila Court under S. 125 CrPC as well as under DV Act and in a Family Court under S. 20 HAMA and if she has a child with her then under Guardianship another forth Maint. suit in a Guardianship Court and or in a Family Court by all legal means so unless and until a prudent Husband takes this ‘multiple maint. drama’ and wastage of Court and husbands time for clarity written on tombstone to Hon’ble SC all the trial Courts ld. Judges and Ld. Magistrate / ld. Guardianship Judge and ld. Principal Judge respectively will still entertain all four maint. cases respectively with a laddu to husband “that the next orders will be set off from the very first one but I will hear her sari, sindoor and Glycerin allegations......”

However in my prudent thinking when codified Laws are already in place for spouses to use then a Hindu wife should not be allowed to go beyond S. 24 HMA and a S. 125 CrPC ld. Magistrate should tell a Hindu wife to go back to HMA Court and fight her way out there for maint. as per principals laid in Hon’ble SC Chand Dhawan’s case law but then who interprets the interpretations intrepidly now-a-days in the age and times of time pass…………….

BTW where is the question of giving advice left in this query I mean you made me lost on that count lady / sir :-)