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2002 DIGILAW 140 (CAL)

Tarak Nath Biswas v. State of W. B.

2002-03-01

Pradip Kumar Biswas

body2002
JUDGMENT Pradip Kumar Biswas, J.: This is an application under section 401 of the Code of Criminal Procedure filed at the instance of Tarak Nath Biswas, the petitioner herein, seeking to set aside the judgment and order dated 20.11.2000 passed by the learned Judicial Magistrate, 2nd Court, Barasat in connection with Misc. Case No. 265 of 1996 (T. 226 of 1996). 2. The short facts leading to the filing of the present revisional application are as under:- "The marriage in between the petitioner and the opposite party No. 2/wife was solemnized on 17.5.89 according to Hindu Rites and Ceremonies, but the marital harmony do not last long inasmuch as on account of wilful refusal of the wife, the marriage was not consummated. 3. The situation became so worse that the petitioner was constrained to file a Matrimonial Suit under section 13(1) (1a) of the Hindu Marriage Act giving rise to Matrimonial Suit No. 5/92 before the learned District Judge, 24 Parganas North and in that Matrimonial Suit opposite party/wife appeared and filed a written statement. 4. The said suit finally came up before the learned Additional District Judge, 3rd Court, Barasat and the learned Judge after taking the evidences as produced by the petitioner and the opposite party and upon hearing the argument of the parties decreed the suit in favour of the petitioner and thereby the marriage in between the petitioner and the opposite party was dissolved. 5. It has further been alleged that the opposite party filed an application under section 125 of the Code of Criminal Procedure claiming maintenance before the learned Chief Judicial Magistrate, North 24 Parganas, Barasat giving rise to Misc. Case No. 265 of 1996. The aforesaid maintenance proceeding finally came up for hearing before the learned Judicial Magistrate, 2nd Court, Barasat whereby the learned Magistrate allowed the prayer of the opposite party No.2. 6. It has been alleged by the petitioner that in arriving at the conclusion the learned Magistrate did not take into consideration the finding and the conclusion arrived at by the Additional District Judge, 2nd Court, Barasat as to the refusal and neglect by the opposite party/wife to continue with the matrimonial tie and decreed the said matrimonial suit on the ground of cruelty, caused by the wife upon her husband. 7. 7. It has further been alleged that in the said matrimonial suit and even in the maintenance proceeding, the opposite party herself admitted that she being an employee of Garulia Municipality in the Health Department, earns money but the learned Magistrate failed to take into consideration of the aforesaid evidence on record for which there has been serious miscarriage of justice as it will be patent that the opposite party-wife has sufficient means of livelihood. It has also been alleged that the decision, in the Matrimonial Suit as concluded by the competent Civil Court having proper jurisdiction, and the finding of the said Civil Court between the same parties is binding upon the parties in a subsequent proceedings and the learned Magistrate was under legal obligation to take into consideration the aforesaid evidence inasmuch as both proceedings have come up from the same party on the self same dispute. 8. So, according to the petitioner, the finding and the order of the learned Magistrate suffers from serious illegality inasmuch as the evidence on record do not answer with the basic requirements of section 125 of the Code of Criminal Procedure and in that view of the fact the finding arrived at by the learned Magistrate deserved interference. Hence, this application seeking for the aforesaid relief. 9. I have heard the parties at length. I have also perused the impugned judgement passed by the learned Magistrate and the judgement passed by the learned Additional District Judge in Matrimonial Suit No.5 of 1992. 10. The learned counsel appearing for the petitioner has submitted before me that section 125 of the Cr. P.C. confers the right to any wife, unable to maintain herself, to claim maintenance from her husband if such husband in spite of having sufficient means neglects or refuses to maintain his wife. But at the same time, it is not every indigent wife that is so entitled to maintenance as apart from showing that the husband has sufficient means it must have to be shown that there has been neglect or refusal in maintaining the wife. But at the same time, it is not every indigent wife that is so entitled to maintenance as apart from showing that the husband has sufficient means it must have to be shown that there has been neglect or refusal in maintaining the wife. He has further submitted that if a person is willing to maintain his wife in accordance with his civil obligation there cannot be any neglect or refusal and where a wife is unreasonably refusing to live with her husband who is prepared to provide her with a matrimonial home that is a matter which must go into reckoning in passing an order under section 125 of Criminal Procedure Code. 11. It has been submitted by the learned counsel that here in this case from the materials on record, specially from the finding of the Matrimonial Court in Matrimonial Suit No.5 of 1992, it will be quite clear that the wife-opposite party was guilty of mental cruelty on various grounds one being mainly for refusing co-habitation in between the present petitioner and the wife/opposite party and also for the reason that she was not willing to return back to the house of the petitioner. So, according to him, viewing the matter from the aforesaid angle, it will be crystal clear that the wife/opposite party, without any sufficient reason was living separately from her husband and that being the position, the wife/opposite party will not be allowed to have any maintenance if she failed to satisfy the court that she had sufficient reason for living separately from her husband. Of course, the scenario has now been changed to some extent after the decree for dissolution of marriage, granted by the competent civil court. 12. It is quite true that the divorced wife is also entitled to receive maintenance from her erstwhile husband till she re-marries. But, here in this case, we are not confronted with such a situation as the claim in connection with the present proceeding was made by the wife/opposite party during the period when marriage tie between the parties was subsisting. 13. The learned counsel appearing on behalf of the petitioner has submitted before me that it is quite well settled principles of law that a judgement in rem like judgements or orders passed in admiralty, probate proceedings etc., would always be admissible irrespective of whether they are inter-parties or not. 13. The learned counsel appearing on behalf of the petitioner has submitted before me that it is quite well settled principles of law that a judgement in rem like judgements or orders passed in admiralty, probate proceedings etc., would always be admissible irrespective of whether they are inter-parties or not. In this connection, he has drawn my attention to a decision in the case of State of Bihar and Ors. vs. Sri Radha Krishna Singh and Ors., reported in A.I.R. 1983 SC 684. I have looked into the aforesaid judgment and in view of the ratio decided in the aforesaid decision, it is quite clear that a judgement in rem e.g., judgments or orders passed in admiralty, probate and insolvency, matrimonial or guardianship or other similar proceedings would always be admissible irrespective of whether they are inter-parties or not and as such the criminal court cannot altogether ignore such specific finding of the civil court in matrimonial proceeding between the parties in awarding maintenance to the wife. 14. It was further been submitted by the learned counsel appearing for the petitioner that the jurisdiction under section 125 of the Cr. P.C. is in the nature of summary jurisdiction for the grant of maintenance but the criminal court cannot possibly go behind a valid judgement and decree granted by a competent civil court and in this connection placing reliance upon the finding of matrimonial suit arrived at by the learned Judge it has been submitted that on perusal of the aforesaid judgement, it will be crystal clear that it is the wife, who refused to live with her husband in the present case and the said fact taken into account will certainly make it clear that there cannot be any cogent ground by the wife/opposite party to live separately from her husband as envisaged under section 125(4) of Cr. P.C. and until and unless the wife/opposite party can satisfy the criminal court with regard to her staying separately from her husband, she cannot get any maintenance whatsoever from her husband. 15. Now, on the face of such findings of the competent civil court regarding her staying away from her husband, no adverse finding can be arrived at by the criminal court in awarding the maintenance. 15. Now, on the face of such findings of the competent civil court regarding her staying away from her husband, no adverse finding can be arrived at by the criminal court in awarding the maintenance. He has, therefore, submitted that the finding of the learned court below in awarding maintenance ignoring the specific finding of the matrimonial proceeding between the parties by a competent civil court and ultimately awarding maintenance to the wife/opposite party is not sustainable in law. 16. The learned counsel appearing for the petitioner has drawn my attention to the further fact that the wife/opposite party had sufficient income, as it will be evident from her evidence-in-cross wherein she has admitted that she is a health worker in the Garulia Municipality wherefrom she gets Rs. 150/- for tififin purposes. It was further pointed out by him that in her cross-examination, wife has further stated that in 1992 she got a sum of Rs. 300/- p.m. from Garulia Municipality. Drawing my attention to the aforesaid statements, it has been contended on behalf of the present petitioner that the opposite party/wife is guilty of suppression of materials fact as to her income and although it has been sought to be suggested by the learned counsel appearing for the opposite party/wife that she is not a regular employee on a salary basis, yet, the materials available before the court are sufficient enough to conclude that she had certainly some amount of income per month being in employment of the health department of the Garulia Municipality. I find much force in the contention of the learned counsel appearing for the petitioner and I am also not in a position to accept the stand taken by the opposite party/wife alleging that she is not in regular employment and the aforesaid fact being suppressed by her, the court should draw adverse presumption against the wife/opposite party under section 114(g) of the Evidence Act holding that she has considerable income of her own and for such reason, the wife will certainly be debarred from claiming any maintenance whatsoever from her husband, even the erstwhile husband, after divorce. 17. 17. Now that being the position and upon hearing the rival contentions of the parties and upon assessing the materials available on record and in view of my findings, in the preceding paragraphs, I am very much inclined to hold that the learned court below was not justified in allowing the application under section 125 of the Cr.P.C. filed by the present opposite party/wife and consequently, the order regarding the grant of maintenance by the learned court below in favour of the wife/opposite party should have to be set aside, as the wife/opposite party has failed to satisfy that she had justified reason for living separately with her husband and that the wife/opposite party has also failed to prove that she was unable to maintain herself. That being the position, the impugned order stands set aside. 18. With this observation, the revisional application stands disposed of. 19. Let a plain copy of this order be sent down to the learned court below for necessary information and compliance. Let a urgent xerox copy of this judgement, if applied for, be given to the parties expeditiously. Revisional application disposed of.