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2000 DIGILAW 635 (CAL)

JIBAN KRISHNA DAS v. RENU DAS

2000-12-14

RANJAN KUMAR MAZUMDER

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R. K. MAZUMDER, J. ( 1 ) -THE instant Criminal revisional application under sections 401 and 482 of the Code of Criminal Procedure is at the instance of the husband-petitioner Shri Jibankrishna Das and this is directed against the order dated 29. 4. 2000 passed by the learned Judicial Magistrate, 4th Court, Howrah in Misc. Case No. 284 of 1998 under section 125 of the Code by which the learned Court below allowed maintenance at the rate of Rs. 900/- per month to the O. P. No. 1 wife Smt. Renu Das. ( 2 ) THE case of the husband-petitioner was in brief that he married O. P. No. 1-Smt. Renu Das long time back according to Hindu rites and customs and that out of this said wedlock two sons and one daughter were born. The daughter was 18 years old and the two sons were aged 21 years and 23 years old respectively at the relevant time. Out of his income from a tailoring shop business, the petitioner purchased a plot of land and constructed a house comprising two rooms, one bathroom and one privy. But unfortunately it so happened that his wife being O. P. No. 1 filed a petition under section 125 of the Code in December, 1998 before the learned Chief Judicial Magistrate, Howrah praying for maintenance and that by the impugned order dated 29. 4. 2000 learned Judicial Magistrate, 4th Court, Howrah granted maintenance at the rate of Rs. 900/- per month to the wife. According to the petitioner he never tortured, assaulted or abused his wife. on the other hand, it was his wife who assaulted him for which the petitioner started living separately in a rented house since 1996 leaving his own house as constructed. The further case of the petitioner was that his wife Renu was living in adultery with one Shri Nirmal Dutta. Hence the O. P. No. 1-wife was not at all entitled to get any maintenance from him as awarded by the learned Court below. ( 3 ) I have had the opportunity of hearing learned counsels for the respective parties at length in the matter. ( 4 ) THE only question requiring consideration was whether the impugned order granting maintenance to the wife dated 29. 4. 2000 should be set aside as prayed for or not. ( 3 ) I have had the opportunity of hearing learned counsels for the respective parties at length in the matter. ( 4 ) THE only question requiring consideration was whether the impugned order granting maintenance to the wife dated 29. 4. 2000 should be set aside as prayed for or not. ( 5 ) AT the time of hearing learned counsel for the husband-petitioner vehemently submitted that his client never misbehaved with his wife being O. P. No. 1 and that he never neglected to maintain her. On the other hand, the O. P. No. 1-wife assaulted and tortured the petitioner for which he had to leave his own house and take shelter in a rented house. It was further submitted that O. P. No. 1-wife was leading an adulterous life with one Shri Nirmal Dutta and such an adulterous scenario was witnessed both by the petitioner and his eldest son aged about 23 years. He, therefore, urged upon this Court for quashing the instant impugned order passed by the learned Court below. ( 6 ) LEARNED counsel for the O. P. No. 1-wife submitted on the other hand, that his client was leading a very happy conjugal life for a long time and she gave birth two sons and one daughter out of the wedlock. He further submitted that his client was never involved in any adultery with anybody else and that all such allegations were baseless. He further submitted that his client never tortured or assaulted the petitioner at any point of time. ( 7 ) IT appears from record that the learned Court below found that O. P. No. 1 wife was neglected and tortured by the petitioner and failed to maintain her. It was also the finding of the learned Court below that the wife had no independent income of her own. Again the learned Court below found that the allegation of adultery as levelled against the wife could not be proved by the husband. It appears that in support of the decision for maintenance, the learned Court below reposed complete faith on the evidence of the O. P. No. 1-wife and her witnesses. On the question of adultery, learned Court below discarded the evidence of the husband and his witnesses. It appears from the evidence of husband-petitioner that on 4. 11. It appears that in support of the decision for maintenance, the learned Court below reposed complete faith on the evidence of the O. P. No. 1-wife and her witnesses. On the question of adultery, learned Court below discarded the evidence of the husband and his witnesses. It appears from the evidence of husband-petitioner that on 4. 11. 96 when he came back from outside, perhaps from business place, he found that his wife was in an unfair and unwanted position. This solitary evidence did not of course prove the charge of adultery against the wife. The eldest son of the parties being PW 2 Anandi, stated in his evidence that the real trouble started in the family when Nirmal Dutta, who happened to be the friend of his father, started visiting their house. PW 2 protested against such visit of Nirmal Dutta to their house and that he even informed the matter to his father in writing. It is also in his evidence that he started living separately with his father as a mark of protest against such visits of Nirmal to their house. Learned Court below refused to accept the story of adultery based on such meagre evidence. ( 8 ) IT is now well settled that the words "living in adultery" used in section 125 (4) of the Code of Criminal Procedure contemplated a continuous course of conduct on the part of the wife with the adulterer or paramour and that a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming maintenance from her husband under section 125 of the Code. In this case it is found that the standard of proof vis-a-vis adultery of the wife as required to disentitle the wife from getting the maintenance is conspicuously absent here. Hence, in my view, learned Court below rightly rejected the plea of adultery as put forward by the husband. ( 9 ) ON the question of income of the husband, learned Court below referred to the admission of the husband that he was getting an income of Rs. 2000/-per month from his tailoring business and awarded maintenance at the rate of Rs. 900/- per month. But in my view, such an award of maintenance at the rate of Rs. 900/- per month was not proper and it should be reduced to Rs. 700/- per month. 2000/-per month from his tailoring business and awarded maintenance at the rate of Rs. 900/- per month. But in my view, such an award of maintenance at the rate of Rs. 900/- per month was not proper and it should be reduced to Rs. 700/- per month. ( 10 ) IN the facts and circumstances of the case, I, therefore, modify the order as to quantum of maintenance to be paid by the husband to the wife. Save and except this, I find no cogent reason to interfere with the impugned order passed by the learned Court below. In other words, in my view the impugned order does not suffer from any manifest error, irregularity or illegality except on the question of quantum of maintenance. ( 11 ) IN the aforesaid back ground, the instant criminal revisional application is allowed only in part. The petitioner is directed to pay maintenance to the wife at the rate of Rs. 700/- per month from the date of the Lower Court's order viz. 29. 4. 2000 without fail. There will be no order as to costs. Let a copy of this order be sent to learned Court below immediately. The criminal revisional application is thus disposed of with the modification mentioned above in regard to the quantum of maintenance. If urgent Certified xerox copy is applied for, office is directed to issue the some as only as possible. Application disposed of.