Arun Kumar Bhattacharya, J.@mdashThe hearing stems from an application filed by the petitioner praying for revision of the order dated 28.4.2004 passed by the learned Judicial Magistrate, 3rd Court, Barrackpore, 24 Parganas (N) in M. Case No. 142/1997 directing him to pay @ Rs. 1,250 p.m. each to the O.P. and her daughter.
2. The circumstances leading to the above application are that in the divorce suit being MAT 19/1996 pending in the Court of learned Additional District Judge, 3rd Court, Barasat, the petitioner was directed to pay Rs. 1,600 p.m. to the O.P. and her daughter towards alimony pendente lite which was subsequently enhanced by order dated 30.5.2002 from Rs. 1,200 p.m. and Rs. 400 p.m. for the O.P. and her daughter to Rs. 1,800 p.m. and Rs. 600 p.m. respectively. The application of O.P. u/s 125, Cr. P.C., registered as M. Case No. 142/1997 was initially dismissed by the learned Judicial Magistrate, 3rd Court, Barrackpore by order dated 28.2.2002 which was reversed on 20.1.2004 in Criminal Revision being No. 267/2002 by the learned Additional Sessions Judge, Fast track Court, Barrackpore holding that granting of alimony pendente lite is no bar for filing application u/s 125, Cr. P.C. and as such the case was sent back to the Trial Court for fresh consideration of the matter. By order dated 28.4.2004 the learned Judicial Magistrate, 3rd Court, Barrackpore, disposed of the said M. Case 142/1997 directing the petitioner to pay Rs. 1,250 p.m. each to the O.P. and her daughter from the date of filing of the case.
3. Being aggrieved by and dissatisfied with the said order, the petitioner has preferred the present revision.
4. All that now requires to be considered is whether the learned Court below was justified in passing the said order.
5. Mr. Dilip Kumar Banerjee, learned Counsel for the petitioner contended that the learned Magistrate did not consider the order dated 30.5.2002 passed by the learned Additional Sessions Judge whereby his client has to pay Rs. 2,400 p.m. towards alimony pendente lite and if the impugned order is to complied with, he will be subjected to double payment which is not at all the intention of the statute, and as such the amount awarded u/s 125, Cr. P.C. for maintenance is liable to be adjusted against the amount awarded in matrimonial proceeding u/s 24 of the Hindu Marriage Act, in support of which the case of
6. Indubitably, awarding alimony pendente lite does not divest the jurisdiction of the learned Magistrate to pass an order u/s 125, Cr. P.C. As provided in Sub-section (2) of Section 127, where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made u/s 125, Cr. P.C. should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. In other words, once a competent Civil Court gives a decision upon the liability for maintenance or the quantum thereof, the Criminal Court should cancel or vary its own order in accordance with the said decision of the Civil Court. It is pertinent to mention in this connection that there is no inconsistency between the Hindu Adoptions and Maintenance Act, 1956 and Section 125, Cr. P.C. The Maintenance Act is an Act to amend and codify the law relating to the adoption and maintenance among Hindus, while Section 125, Cr. P.C. which provides a summary remedy is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. The remedies available under the Maintenance Act and Section 125, Cr. P.C. are co-existent, mutually complementary, supplementary, in aid and in addition to each other, and the remedy resorted to under either of the two cannot foreclose the remedy under the other Act. In the present case, the said amount of Rs. 2,400 p.m. (Rs. 1,800 + Rs. 600) was awarded towards alimony pendente lite in favour of the wife and her daughter. So, at the time passing the impugned order on 28.4.2004 awarding Rs. 1,250 p.m. each to the wife and her daughter from the date of institution of the case, the learned Magistrate ought to have taken into the account the said enhanced alimony @Rs. 1,800 p.m. and Rs. 600 p.m. totalling to Rs. 2,400 p.m. awarded in favour of the wife and her daughter respectively as ordered by the learned Additional District Judge, Barasat in MAT Suit 19/1996 on 30.5.2002.
7. Therefore, in view of the decision of Sudeep Chaudhury (supra), the amount awarded u/s 125, Cr. P.C. for maintenance is adjustable against the amount awarded in matrimonial proceeding and is not to be over and above the same. Similar is more or less the decision of this Court in Sailendra Nath Ghosh v. State of West Bengal reported in 1 (1998) CCR 592 : 1997 .Cr. L.R. 382. The decision in Ramesh Chander does not appear to militate against his view.
8. Ordinarily, it is ordered that maintenance is payable from the date of order. All, however, depends upon appreciation of overall situation of the case. In this connection, the decision of this Court in
9. The present revisional application is disposed of accordingly with a direction that the petitioner shall pay to the O.P./wife towards maintenance the same amount as ordered in the matrimonial proceeding from time to time from the date of filing of the application u/s 125, Cr. P.C. and such payment is adjustable against the amount awarded in the matrimonial proceeding, and the arrear, if any is payable within eight weeks hence.
Let a copy of this order be sent down at once to the learned Court below.
