- (1.) THE petitioner/appellant filed an application in the year 2000 under Section 9 of the Hindu Marriage Act for a decree of restitution of conjugal rights. The suit was registered as Title (Matrimonial) Suit No. 4 of 1996. in the said suit, interim order was passed on 21.3.1998 for payment of maintenance pendente lite to the respondent No. 2 at the rate of Rs. 750.00 per month besides Rs. l,000.00 towards litigation cost. The suit was ultimately dismissed for non prosecution on 26.2.1999. Thereafter, when the appellant did not comply the order for payment of pendente lite maintenance, the respondent No. 2 moved the Court in Criminal Execution Case No. 45 of 2000 for realization of the maintenance amount, which was directed to be paid w.e.f. 1996. The Court below issued distress warrant which was challenged by the appellant in WP (C) No. 3556 of 2001. This Court vide order dated 7.8.2001 declined to interfere with the said order but directed the appellant to appear before the Court below and stayed the operation of the distress warrant, inspite of the aforesaid direction, admittedly, the appellant did not deposit any amount before the Family Court instead filed an application taking the plea that maintenance is not payable on the ground, inter alia, that the respondent No. 2 went for a second marriage..
(2.) IT is to be noted that the date when the respondent No. 2 married second time has not been disclosed. The Court below although took notice of the said application in the order dated 18.8.2001 but on the subsequent date i.e, 30.8.2001 order for issuance of distress warrant has been passed. The said order was again challenged in WP (C) No. 5511 of 2001 which was disposed of on 30.1.2004 by the impugned judgment quoted herein -below : "Heard Mr, Mazumdar, learned counsel for the petitioner and Mr. Sahani, learned counsel appearing for the respondents. This application is being disposed of with a direction that the order dated the 30th August, 2001 (Annexure 8 to the writ application) by which the order of attachment against the petitioners was ordered to be issued, shall not be given effect to, till the petition under Sec.24 of the Hindu Marriage Act pending in the Court below is decided finally after hearing the parties, if the petitioner pays, Rs. 50,000.00 in three equal installments to the respondent No. 2. First installment shall be paid to the respondent wife by the petitioner husband within 15 days from today. The second and third installments shall be paid by him within a period of two months from the date of payment of the first installment. If the petitioner fails to deposit any of the installments within the time specified above, the order impugned dated the 30th of August, 2001 shall become operative. This application stands disposed of with the above observation and direction."
(3.) MR . Indrajeet Sinha, learned counsel for the appellant submitted that the Court below ought to have considered the application dated 18.8.2001 Hied by the appellant before issuing the distress warrant for recovery of the amount of maintenance.;