Calcutta High Court (Appellete Side)
Smt. Priya Lodh vs Sri Subhankar Lodh on 20 August, 2015
Citation:2016 CRLJ(NOC)162 Cal
This revisional application has been filed under Article 227 of the Constitution of India by Smt. Priya Lodh as wife petitioner against Sri Subhankar Lodh the husband respondent challenging the amount of interim maintenance allowance awarded by learned Judicial Magistrate, 3rd Court, Barrackpore, North 24 Parganas in Case No. M 327 of 2013 under Section 125 of the Code of Criminal Procedure. In that order learned Court below has awarded interim maintenance allowance of Rs.1,500/- per month for the petitioner and a further sum of Rs. 1,500/- per month as interim maintenance allowance for her minor child. Petitioner has challenged that order claiming the amount as meagre one and has prayed for setting aside the impugned order together with a prayer for ad interim stay of all further proceedings of Misc. Case No. 327 of 2014 till disposal of this matter.
Husband respondent has contested this application. At the time of hearing learned Advocate for the respondent has argued that on one hand the petitioner has claimed that the quantum of interim maintenance allowance is insufficient for maintenance of herself and her minor son but interestingly, she has prayed for setting aside the impugned order granting interim maintenance allowance in favour of petitioner and more surprisingly for stay of further proceedings of that case.
Learned Advocate for the petitioner has claimed that the petitioner has no means to maintain herself and her minor child and as such the amounts should be enhanced by exercising power of this Hon'ble Court under Article 227 of the Constitution of India. Learned Advocate for the respondent has argued that had there been no means of the petitioner as alleged for maintaining herself and her minor child certainly she would not pray for setting aside the impugned order and for stay of further proceedings of the case in the Court below. According to petitioner's claim the respondent earns huge amount as Ayurvedic Medical Practitioner but the respondent claims that he earns Rs.5000/- only per month as a compounder of a doctor. On going through the certified copy of the impugned order it appears that the learned Judicial Magistrate has considered the rival contentions of both the parties and considering the prima facie materials on record, the impugned order has been passed by him. It is needless to say that the impugned order is an interlocutory order and not a final order and revision against such application under the provisions of the Code of Criminal Procedure is hit by Section 397 (2) of the Code of Criminal Procedure.
However, this application has been filed by the petitioner under Article 227 of the Constitution of India before this criminal revisional jurisdiction. As such, the petitioner has made her prayer for a revision of the impugned order through the provisions of the Constitution of India as her prayer may not be permissible under the provisions of the Code of Criminal Procedure. In my view, when such a relief is barred by the Code of Criminal Procedure, prayer for such relief cannot be held justified in the form of this application filed by the petitioner. Moreover, the impugned order apparently does not go against legality, propriety and correctness of the impugned order. Prayer of the petitioner for setting aside the impugned order and granting interim maintenance allowance and prayer for stay of further proceedings of the case in the Court below also cannot be held proper. Considering all aspects I am not satisfied to allow the revisional application and therefore, the revisional application stands dismissed. No order as to costs is passed.
Urgent certified photocopy, if applied for, be supplied to the parties observing all requisite formalities.
(SANKAR ACHARYYA, J.,)
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