CRIMINAL REVISIONAL JURISDICTION v. Kajal Sarkar

Judgment

1. By filing this application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner/wife has challenged the correctness, legality and propriety of the impugned order dated 09.01.2018 passed by the Learned Chief 2 Judicial Magistrate, Suri, Birbhum in Misc. Execution Case No. 100 of 2015 in connection with Misc. Case No. 35/97 under Section 125 of the Code of Criminal Procedure thereby rejected the prayer of the petitioner to recover the amount due under Section 125 (3) on the ground that the execution case filed beyond the period of limitation and time barred.

2. The factual matrix of the instant case is that the petitioner herein got married with one Kajal Sarkar, opposite party herein according to Hindu Rites and Customs at Ahmadpur on 16th January, 1996. The opposite party was in Indian Military Service at the time of marriage. Petitioner was compelled to leave the house of the opposite party as such she started living separately. To meet necessary expenses, she filed a Misc. Case No. 35 of 1997 under Section 125 of the Cr.PC, seeking maintenance before the learned Chief Judicial Magistrate, Birbhum. At the same time, opposite party also filed a Matrimonial Suit No. 76/2000 praying for divorce but the same was dismissed for default with cost vide an order dated 13th January, 2003 by the Learned Additional District and Sessions Judge, Fast Track, 1st Court, Suri, Birbhum. 2a. It is further case of the petitioner that the learned Chief

Judicial Magistrate, after hearing the parties, allowed a maintenance 3 to the tune of Rs. 1500/- per month on 29th January, 2004 and directed the opposite party/husband to pay maintenance. Despite of the said order, the opposite party wilfully neglected to pay the maintenance in pursuant to the order dated 29th January, 2004. The same fact was informed to the concerned authority of the Indian Military Service i.e. Electroniki Aur Yantrik Engineer, Abhilekh Karyalaya, EME Records, Secundrabad – 21 about non-compliance of order dated 29.01.2004 by the opposite party. In response to the said information, the departmental memo being Memo No. 14550897K/T- I/V-I/02/MA dated 29th April, 2004, the arrear maintenance with cost and regular maintenance was allowed to the petitioner directly from the salary of the opposite party/respondent. Maintenance amount used to come directly to the petitioner from the department of Indian Military but suddenly it was stopped from February, 2007 and petitioner had no knowledge of the reason for such non-payment. Subsequently, it came to the knowledge of the petitioner that opposite party had retired from service. The concerned department had informed the petitioner to approach the Court for recovery of her arrear maintenance allowance. Having no other alternative, the petitioner filed two Misc. Execution Cases being Misc. Execution Case No. 106/2014 and Misc. Execution Case No. 62/2015 before the learned Chief Judicial Magistrate, Suri, Birbhum. However, the 4 learned Court allowed only the maintenance of Rs. 28,500/- out of total arrear maintenance of Rs. 1,51,500/- but Rs. 1,23,000/- remained unpaid for past 82 months i.e. from February, 2007 to October, 2014. Accordingly, petitioner again filed another Misc. Execution Case No. 100 of 2015 praying, inter alia, for the aforesaid remaining due amount of Rs. 1,23,000/- but the said prayer was rejected by the learned Chief Judicial Magistrate, Suri, Birbhum vide order dated 09.01.2018 on mere technical ground of limitation although the case of the petitioner for arrear maintenance is a continuing one. 2b. Feeling aggrieved by and dissatisfied with the said rejection order, the present petitioner has filed this revisional application.

3. Under circumstances, criminal revisional application has come up before this Bench for disposal. SUBMISSION ON BEHALF OF THE PETITIONER:

4. Learned counsels appearing on behalf of the petitioner filed written notes of argument and further submitted that the learned Court below erred in law while rejecting the prayer for payment of arrear dues remained unpaid from February, 2007 to October, 2014. 5 4a. It is further submitted that the petitioner filed the Misc. Execution Case No. 100 of 2015 for getting the arrear maintenance as a whole as per the advice of concerned department of Indian Military on considering the representation of the petitioner that the maintenance cannot be paid from the pension of the opposite party. 4b. Under such circumstances, the petitioner does not come within the ambit of provision of limitation of Section 125(3) of the Code of Criminal Procedure, 1973. The petitioner cannot be deprived from her legitimate claim of arrear maintenance for no fault of her own but it was ill motive of the opposite party not to pay maintenance as per the order dated 29.01.2004 passed in connection with the Misc. Case No. 35/97. As such the impugned order of rejection for arrear for more than one year maintenance u/s 125(3) of CrPC is liable to be set aside and her all arrear maintenances are to be paid by the opposite party. 4c. Finally, he placed reliance of a judgment passed in Poongodi and Another v. Thangavel1 to support his contention that wife is entitled to entire arrears of maintenance due from opposite party.

5. Despite of service, no body appeared on behalf of the opposite party/husband.