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2002 DIGILAW 130 (CAL)

Abhir Das v. Lakshmi @ Baby Das

2002-02-27

Pradip Kumar Biswas

body2002
Judgment Pradip Kumar Biswas, J. Learned counsel for the petitioner is present and learned counsel appearing for the opposite party is also present. Heard them at length. 2. This is an application under sections 401/482 of the Code of Criminal Procedure filed at the instance of the husband-petitioner, Adhir Das seeking to set aside the judgment and order dated September 11,1995 passed by the learned Judicial Magistrate, 1st. Class, Kalyani, Nadia, in connection with Misc. Case No. 17 of 1987 under section 125 of the Code of Criminal Procedure whereby the learned Judicial Magistrate was pleased to award maintenance of Rs.300/- per month to the opposite party for the maintenance of her son. 3. The short facts leading to the filing of this revisional application are as under :- The opposite party herein filed one application before the court of learned Sub-Divisional Judicial Magistrate, Nadia on or about 25th February, 1987 against the present petitioner claiming maintenance for herself and her son under section 125 of the Code of Criminal Procedure alleging, inter alia, that the opposite party was given in marriage with the petitioner on December 14, 1985 corresponding to Agrahayan 2, 1392 B.S. according to Hindu rites and ceremonies. 4. It was further alleged that the opposite party lived with the petitioner as husband and wife and a male child was born out of the said wedlock. Subsequently, the petitioner and his other in-laws tortured upon the opposite party claiming more dowries and on the refusal of the opposite party to give false evidence in a case, the petitioner and his inmates threatened to kill her and on that night, the petitioner assaulted her and tried to put her in a gunny bag. But the opposite party somehow escaped and rushed to another room and bolted the door. On the following dawn, the opposite party along with her child took shelter at her father's place. The opposite party then lodged an information to the Chakdah Police Station and a case was registered as Chakdah Police Station Case No. 18 dated 15.12.1986 under section 498A of the Code of Criminal Procedure. 5. It was further alleged that the petitioner did not look after the opposite party and her child for which she was compelled to file an application seeking for the aforesaid relief. 6. 5. It was further alleged that the petitioner did not look after the opposite party and her child for which she was compelled to file an application seeking for the aforesaid relief. 6. The aforesaid application was duly contested by the present petitioner by filing show-cause whereby he denied the fact of marriage with the opposite party and it was contended by the petitioner that he had married one Dipali Das and the said marriage was still subsisting. The petitioner had also stated that he has some dependants in his family and on that plea, he prayed for dismissal of the aforesaid application filed by the opposite party. The learned court below after taking the evidence of the parties disposed of the aforesaid maintenance application and awarded maintenance to the son of the opposite party alone and at the same time, the learned court below refused to allow any maintenance to the opposite party-wife although he found on the evidence and materials on record that there was marriage between the opposite party and the present petitioner but treated the said marriage as 'bogus marriage' as there was another wife of the present petitioner and the said marriage was held prior to the marriage between the present petitioner and the opposite party. 7. Being aggrieved by the grant of maintenance in favour of the son of the opposite party, the present revisional application has been directed by the petitioner herein alleging that the learned court below without proper discussion of the evidence on record has come to a finding with regard to the marriage between the parties on record and as such there has been miscarriage of justice. It has also been contended on behalf of the petitioner that the learned court below was not also justified in granting maintenance to the son of the opposite party and that too, from the date of the filing of the application. It has further been contended on behalf of the petitioner that the materials and evidence available on record do not justify such finding of the learned court below and as such, he has come up before this forum for setting aside the aforesaid judgment. 8. I have heard the parties at length. It has further been contended on behalf of the petitioner that the materials and evidence available on record do not justify such finding of the learned court below and as such, he has come up before this forum for setting aside the aforesaid judgment. 8. I have heard the parties at length. The learned counsel appearing for the petitioner drawing my attention to the judgment of the learned court below, specially in relation to the discussion of the evidence adduced by the present petitioner, as opposite party before the learned court below, has submitted before me that although the learned court below has discussed the evidence with regard to the evidence adduced by the opposite party, yet only by using the words that other witnesses of the present petitioner were interested, he has disbelieved the evidence adduced by the present petitioner as opposite party before the said court. 9. Drawing my attention to a decision in the case of State of Rajasthan vs. Smt. Kalki & Anr., reported in AIR 1981 SC 1390 , it has been submitted by the learned counsel appearing for the petitioner that a witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished and here in this case, O.P.Ws., as it appears, were only natural witnesses and as such they cannot be said to be interested in view of the parameters laid by the aforesaid decision of the Apex Court and as such, the finding of the learned court below with regard to the aforesaid witness was not at all sustainable and justified. 10. In opposing the aforesaid claim of the learned counsel appearing for the petitioner, it has been submitted by the learned counsel appearing on behalf of the opposite party-wife that sitting in a revisional forum, it is not necessary for the High Court to examine the whole evidence thread-bare to exercise its jurisdiction and it is more so in a case under section 125 of the Code of Criminal Procedure and in such a else, the trial court is to take a prima facie view of the matter and it is not necessary for the court to go into the matrimonial disputes between the parties in details. In this connection, he has referred to a decision reported in 1999 SCC (Cri) 1118 in the case of Rajathi vs. C. Ganeshan. 11. Further it has been submitted by the learned counsel appearing for the wife/opposite party that the learned court below after discussion of the evidence on record recorded some sort of findings in his judgment and such findings were arrived at by the learned court below after full consideration of the evidence and since it cannot be termed to be a perverse finding, the revisional court should not disturb such finding of the court below as no error of law appears to have been discovered in the aforesaid judgment. So, question of re-assessment of the evidence and substitute their own views for those by the revisional court is not permissible. In support of his contention, he has placed his reliance upon a decision in the case of Bakulbai & Anr. vs. Gangaram & Anr., reported in 1998 SCC (Cri) 189. 12. Lastly, it has been submitted by the learned counsel appearing on behalf of the wife/opposite party that in course of his argument it was sought to be explained on behalf of the petitioner that there was no overwhelming evidence for grant of maintenance in favour of the son of the opposite party, so to say, to show that he was begotten by the present petitioner but it has been submitted on behalf of the opposite party that there is a clear discussion of the evidence by the learned trial Judge and after that he has arrived at a finding that the male child was born out of the wedlock between Adhir Das and Lakshmi Das meaning thereby the present petitioner and the opposite party. 13. He has further submitted that the aforesaid finding of the learned trial court in a summary proceeding cannot be disturbed on the evidence and materials available before the court and if anyone is to challenge that finding, the proper course is to seek an appropriate declaration in the civil court after fulfledged trial and in support of his contention, he has placed a reliance on the ratio of the decision reported in 1987 SCC (Cri) 237 in the case of Smt. Dukhtar Jahan vs. Mohammed Farooq. 14. 14. Now upon hearing the rival submissions of the parties before me and looking into the aforesaid decisions cited at the bar, I am of the clear view that in the present case, the learned trial Judge after thorough discussions came to the finding that although there has been marriage between the parties to this proceeding, yet, the opposite party could not be given a status of a wife due to subsistence of the previous marriage between the present petitioner and one Dipali Das but the learned court below after proper discussion of the evidence and materials available before him has awarded maintenance only in favour of the son of the petitioner, opposite party herein, from the date of the application and in doing so, I find that no illegality or impropriety has been committed by the learned court below in awarding such maintenance to the son of the petitioner, opposite party herein from the date of the application as it is now also quite well settled principle of law that section 125 Cr. P.C. does not require recording of reasons for awarding any maintenance from the date of the application. 15. That being the position, upon assessing the materials available before me and in view of my findings made above, I am of the clear view that there is no merit in this revisional application and as such, the same should be dismissed. The revisional application, therefore, stands dismissed. 16. Copy of this order be sent down to the court below for information and necessary compliance. Liberty is however, given to the opposite party to put the order of maintenance into execution for realisation of the arrear amount of maintenance, if any. 17. Xerox certified copy of this order, if applied for, be made available to the parties within ten days. Revisional application dismissed.