- (1.) This revisional application has been filed by petitioner challenging the judgment and order dated 04.12.2012 (hereinafter called as impugned judgment) passed by learned Additional Sessions Judge, First Fast Track Court, Diamond Harbour, South 24 Parganas in Criminal Motion No. 88 of 2010. Said Criminal Motion was filed by opposite party no. 2 challenging the judgment and order dated 12.07.2010 passed by learned Judicial Magistrate, 1st Court, Diamond Harbour in M. Case No. 309/2004 under Section 125 of the Code of Criminal Procedure (in short Cr.P.C.) by the opposite party no. 2 Rina Khatoon. Admitted facts are that both the petitioner and opposite party no. 2 are the Muslims and they were married and out of their wedlock two daughters were born. During subsistence of their marital relationship the wife Rina Khatoon filed M. Case No. 81 of 1996 under Section 125, Cr.P.C. against her husband for getting maintenance allowance for herself and her two minor daughters. Said case was disposed of on compromise on 22.06.1999 under order of learned Sub -Divisional Judicial Magistrate, Diamond Harbour.
(2.) In that compromise the opposite party no. 2 of this case as petitioner received Rs.20,000/ - and one pair gold earrings from opposite party who is the petitioner in this case and mentioned that she would not claim maintenance in future for herself or her children from her husband and she would not file any case under the provision of The Muslim Women (Protection of Rights on Divorce) Act, 1986. During pendency of that case present petitioner Habibar Rahaman Sk. divorced the opposite party no. 2 pronouncing Talaq. The divorced woman Rina Khatoon subsequently filed case no. M. 311 of 2004 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and that case was heard ex parte and disposed of on 26.04.2006 in the Court of learned Additional Chief Judicial Magistrate, Diamond Harbour. In that order present petitioner as opposite party in that case was directed to pay Rs.30,000/ - as the amount of Denmohar and Rs.3000/ - as maintenance for 'iddat' period of the present opposite party no. 2 as petitioner in that case. Said part of the order was executed with full satisfaction. In the said order dated 26.04.2006 present petitioner was also directed to pay monthly maintenance of Rs.1000/ - to the petitioner (opposite party no. 2 herein) till she remarries. Said opposite party no. 2 Rina Khatoon filed second application under Section 125, Cr.P.C. being case no. M. 309/2004 against the present petitioner claiming maintenance for herself and her two minor daughters. Said case was decided on contest in the 1st Court of learned Judicial Magistrate, Diamond Harbour delivering judgment dated 12.07.2010. In that judgment claim of the petitioner (opposite party no. 2 herein) for getting maintenance allowance was dismissed on the ground that one order for her getting monthly maintenance allowance of Rs.1000/ - as per order dated 26.04.2006 in M. 311 of 2004 (supra) was in force which fact was suppressed by her in the proceedings of M. 309/2004 under Section 125, Cr.P.C. In that judgment of M. 309/2004 learned Magistrate allowed petitioner's prayer for getting maintenance allowance for her two daughters at the rate of Rs.500/ - each per month against the present petitioner who is the father of said two children . Said judgment was not challenged by the present petitioner but the opposite party no. 2 challenged that judgment filing Criminal Motion No. 88 of 2010 and in that case the impugned judgment has been passed.
(3.) At the time of hearing Mr. Mukherjee, learned counsel for the petitioner assailed the impugned judgment submitting that the order passed by learned Magistrate in M. 309/2004 is based on reasoning and legal principles but in the impugned judgment learned Additional Sessions Judge did not consider that order properly. He pointed out that the prayer of Rina Khatoon for her maintenance allowance under Section 125, Cr.P.C. was refused by learned Magistrate on the ground that she has been enjoying an order of monthly maintenance allowance awarded in M. 311/2004 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 but in the impugned judgment learned Magistrate was directed to reconsider the prayer of maintenance allowance of the petitioner under Section 125, Cr.P.C. which is apparently illegal. He further submitted that in the judgment dated 12.07.2010 in M. 309/2014 learned Magistrate considered income of the present petitioner Habibar Rahaman Sk. and his liabilities towards his second wife and two sons of his second wedlock also in addition to his liability towards his divorced first wife and her two children and passed his reasoned order awarding reasoned amount of maintenance of the two daughters of petitioner which was not appreciated in the impugned judgment illegally on the basis of surmise and conjecture. He further submitted that the eldest daughter of the petitioner and Rina Khatoon has already been married and so this petitioner may be exonerated from payment of any maintenance allowance for her.;