Goutam Das v. Smt Jogomaya Das @ Jogmaya Das & ANR

C.R.R. No.1256 of 2013 (Via Video Conference) D/L22.

July 20, Bpg.

In Re : An application under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973;

In the matter of : Goutam Das. ...petitioner. The present revisional application has been preferred against the judgment and order dated order 5.3.2013 passed by the learned Additional Sessions Judge, Fast Track, Court-II, Howrah in Criminal Revision Application No.164 of 2011 wherein the learned Sessions Judge while exercising its revisional jurisdiction was pleased to affirm the orders dated 19.2.2011 and 7.7.2011 passed by the learned Judicial Magistrate, 5th Court, Howrah in Misc. Execution Case No.11 of 2011.

The thrust of contention of the petitioner before the learned Sessions Judge was that the learned Magistrate failed to appreciate that the execution case is not maintainable as the wife cannot file maintenance both under Section 125 of the Code of Criminal Procedure as well as under the provisions of Protection of Women from Domestic Violence Act, 2005. It is pertinent to state that the wife is entitled to get maintenance for both the provisions of law but the quantum of award is to be adjusted and it is settled principle that the higher quantum of award would prevail. Having regard to the settled principles of law, I am of the view that no interference is called for in respect of the order under

challenge and, as such, CRR 1256 of 2013 is dismissed. Pending application, if any, is consequently disposed of. Interim order, if any, is hereby vacated.

The wife/opposite party no.1 will be at liberty to take out an appropriate application for recovery of arrears, before the learned Judicial Magistrate.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court. (Tirthankar Ghosh, J.)