Jay Sengupta, J. - (1.) This is a revisional application challenging a judgment and order dated 13.12.2017 passed by the Learned Additional Sessions Judge, 17th Court, Alipore, South 24 Paraganas in Criminal Appeal No. 106/2017 under Section 29 of the Protection of Women from Domestic Violence Act, thereby allowing the appeal, setting aside the order dated 11.04.2017 passed by the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Paraganas in M-EX Case No. 90 of 2016, remanding back the matter before the Learned Magistrate and directing him to proceed onwards and to adjust and amount paid by the husband for the educational expenses of the children.
(2.) The Learned Advocate appearing on behalf of the petitioner submitted as follows. the petitioner/wife and the opposite party no. 2/husband got married on 07.12.1996. A son and a daughter were born to them. The son became a college student. The petitioner suffered immense torture at the hands of the husband and finally she was driven out of the matrimonial home with her two children. The opposite party no. 2 was a businessman. He had a business of food catering at the La Martinier School and other reputed schools. As such, he earned a handsome income. On 31.05.2015 the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Paraganas was pleased to dispose of an application of the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, thereby, inter alia, directing the opposite party not to commit domestic violence against the petitioner, the Officer-in-Charge of the local police station to look into the matter for the petitioner's protection, the opposite party no. 2 not to disturb the peaceful residence of the petitioner and the children in the shared household, the opposite party no. 2 to pay a sum of Rs. 23000/- per month to the petitioner as monetary relief for herself and for her two children and to pay a sum of Rs. 50000/- as compensation for the pain and suffering caused to the petitioner. The opposite party no. 1 did not comply with the directions because of which all these arrears of maintenance piled up. After about a year, the wife received a paltry sum. The petitioner filed two execution cases for recovery of the arrears of maintenance allowance. The husband did not challenge the original order directing payment of maintenance. But, he took up a plea in the instant execution case that he was making payment separately and as such, the execution case would not lie. His claim was rejected by an order dated 11.04.2017. Challenging this, the husband preferred an appeal that resulted in the impugned order. Till date the petitioner wife had received only a small sum from the opposite party. In any event, a payment made by the opposite party other than the stipulated sum of maintenance allowance as awarded by the Learned Magistrate would have to be taken as an independent voluntary act of the opposite party no. 2. Such purported irregular, yet voluntary, payments could not be treated to be in lieu of payment of maintenance allowance as per the Court's order and therefore, could not be adjusted with the sum awarded.
(3.) The Learned Advocate appearing on behalf of the opposite party submitted as follows. There were no dues for the arrears of maintenance. Referring to the affidavit in reply filed on behalf of the petitioner, it was submitted that some payments made by the opposite party no. 2 were admitted by the petitioner. Reference was also made to an annexure in the affidavit in opposition in respect of evidence in a collateral proceeding and it was submitted that the husband was paying sums of money to the petitioner. Besides, the petitioner was occupying the husband's house. Relying on A. Palaniswamy vs. Alagammal, P. Chitra and State, 2007 3 AICLR 554 , it was submitted that a joint award of maintenance to more than one person is absolutely bad. If a joint award is passed and subsequently an award of maintenance is rejected in respect of one of the two persons who were awarded maintenance, then it would be difficult for the superior Court to determine what quantum of maintenance had been awarded to the other. An executing Court can go into the original order under exceptional circumstances like when the order is vague.;