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2003 DIGILAW 99 (CAL)

Prasanta Kumar Dey v. Indrani Dey @ Sinha

2003-03-07

S.P.Talukdar

body2003
JUDGMENT S.P. Talukdar, J. The instant case arising out of an application under Article 227 of the Constitution of India is directed against the Order dated 30th May, 2002 passed by the learned Judge, Family Court, Calcutta in Misc. Case No. 7 of 2002. 2. Grievances of the petitioner may be capsulated in a few sentences as follows:- 3. Petitioner married one Smt. Gita Dey on 20th February, 1975 and since then, they have been living happily together. In connection with the admission of one of the relatives of his wife into the nursing course, they had a joint meeting with one Indrani Sinha @ Srabani Sinha @ alleged Smt. Indrani Dey, hereinafter referred to as Opposite Party No. 1. O.P. No. 1 continued to remain in touch with petitioner's wife and earned her sympathy by narrating stories of her ill fate. Petitioner's wife during the said period introduced O.P. No. 1 to the petitioner. Petitioner's wife became so sympathetic that she often used to take money from her husband in order to help O.P. No. 1. During the said period on a particular occasion O.P. No. 1 told petitioner's wife that she had been driven out by her aunt and was left with no place to reside excepting going to Jhargram. O.P. No. 1 used to press the petitioner for arranging some sort of accommodation for her near Calcutta or around. Petitioner and his wife, however, refused to accommodate O.P. No. 1 in the same flat. 4. Subsequently, O.P. No. 1 informed the petitioner and his wife that she could manage to obtain a small room at Liluah and petitioner's wife became so relaxed that she purchased several utensils and other articles for her. Petitioner's wife used to look after O.P. No. 1 with such care that she could peacefully complete her nursing course. On 31.03.1994 O.P. No. 1 suddenly told them that she was in an advanced stage of pregnancy reportedly due to her relationship with a doctor. Petitioner and his wife since then started taking extra care of O.P. No. 1 and she was shifted from Liluah to Thakurpukur and petitioner's wife used to visit her with food and other things in order to keep O.P. No. 1 healthy. Occasionally petitioner's wife, however, during such visits found the flat locked from outside. Petitioner and his wife since then started taking extra care of O.P. No. 1 and she was shifted from Liluah to Thakurpukur and petitioner's wife used to visit her with food and other things in order to keep O.P. No. 1 healthy. Occasionally petitioner's wife, however, during such visits found the flat locked from outside. On 20th October, 1994 an intimation was received from Thakurpukur Police Station that O.P. No. 1 having met with an accident, was under treatment at NRS Hospital. Both the petitioner and his wife left no stone unturned for her recovery. No other friend or relative of O.P. No. 1 was ever seen and this left the petitioner with no option but to sign in most of the medical papers as guardian of O.P. No. 1. O.P. No. 1 gradually became a psychological patient and was later shifted to maternity ward of NRS Hospital where on 20th November, 1994 she gave birth to a male child who is O.P. No. 2 in the present case. Taking advantage of the kindness and softness of the petitioner and his wife and being instigated by some greedy relatives, O.P. No. 1 lodged FIR on 29th July, 1997 and filed a false case under section 498A of Indian Penal Code, which is still pending O.P. No. 1 filed, another application under section 125 of the Code of Criminal Procedure in the Family Court at Calcutta on 17th January, 2002. On 27th March, 2002 the petitioner could not attend the Court as he was already admitted to a Nursing Home namely 'KASTURI MEDICAL RESEARCH CENTRE (P) LIMITED' due to severe cardiac attack. Petitioner's wife Smt. Gita Dey, however, attended Court with an application for adjournment supported by a medical certificate. 5. Learned Judge, Family Court, passed an ex parte order for interim maintenance in favour of child i.e. O.P. No. 2 being Rs. 1500/- per month with effect from March, 2002. Such order of granting interim maintenance is without jurisdiction and bad in law being violative of the principle of natural justice as the adjournment application was not disposed of. 6. Learned Judge, Family Court, passed an ex parte order for interim maintenance in favour of child i.e. O.P. No. 2 being Rs. 1500/- per month with effect from March, 2002. Such order of granting interim maintenance is without jurisdiction and bad in law being violative of the principle of natural justice as the adjournment application was not disposed of. 6. Being aggrieved by and dissatisfied with the order dated 27th March, 2002, the petitioner filed an application under Article 227 of the Constitution of India before the Hon'ble High Court being CRR 966 of 2002 and the same came up for hearing before the Hon'ble Justice D.P. Sengupta on 6th May, 2002. The Hon'ble Court disposed of the application with the following observations :- "..... From the medical papers, it appears that at the relevant period, the petitioner/ husband suffered from some cardiac problems. The learned Judge, in such circumstances, could have adjourned the matter for a short period and could have given an opportunity to the petitioner/husband to appear on the next date. But instead of that, the learned Judge took up the matter and passed an order finally directing the petitioner to pay interim maintenance at the rate of Rs. 1,500/- per month for his son. It further appears from the impugned order that there is no finding of the learned Judge regarding the income of the petitioner/husband. In my considered view the impugned order suffers from illegality, and the same is liable to be set aside..." 7. On 24th April, 2002, the petitioner filed a suit for declaration and injunction being Title Suit No. 114 of 2002 before the learned 5th Court of Civil Judge (Junior Division), Alipore and moved an application under Order 39 Rules 1 & 2 read with section 151 of Civil Procedure Code along with an application under Order 32 Rule 3 of the Civil Procedure Code and learned Court passed an order with the following observations:- "..... Perused the plaint, injunction petition and the annexures thereto. Learned Advocate for the plaintiff cited me 1982(2) C.L.J. 366 , A.I.R. 1993 Cal. 203 and 89 C.W.N. 671 regarding maintainability of the suit. I have gone through the judgment and considered. After going through Annexure 'E' and annexure 'C' I find that there is a prima facie case for granting an order of ad interim injunction to safeguard the interest of the plaintiffs. 203 and 89 C.W.N. 671 regarding maintainability of the suit. I have gone through the judgment and considered. After going through Annexure 'E' and annexure 'C' I find that there is a prima facie case for granting an order of ad interim injunction to safeguard the interest of the plaintiffs. Delay will cause prejudice. Hence, Ordered That the defendants are hereby restrained from claiming any right anywhere as the wife of the plaintiff No. 1 till 8/5/2002...." 8. Thereafter, on 8th May, 2002 and 5th June, 2002 the plaintiff filed affidavits praying for extension of ad interim order of injunction which was duly granted by the learned Civil Judge (Junior Division), 5th Court, Alipore till 6th August, 2002. On 20th May, 2002 the petitioner filed an application praying for stay of all further proceedings till disposal of the injunction application in the Alipore Court but, learned Judge, Family Court acted illegally and fixed a date on 30th May, 2002 for filing of the written objection. Petitioner was not given any liberty to file any written objection as against O.P. No. 1’s prayer for interim maintenance. The order for injunction granted by the learned Civil Court, (Junior Division), 5th Court, Alipore was brought to the notice of the learned Judge, Family Court but, learned Judge, Family Court passed an interim order of maintenance. Learned Judge, Family Court, thus, acted illegally and with material irregularity in not caring for any evidence as to the income of the petitioner. There is no material produced before the learned Family Court at the interim stage indicating the monthly income of the petitioner in order to justify the finding of the Family Court in that regard. Learned Judge, Family Court, thus, acted beyond jurisdiction as there was no evidence regarding marital status of O.P. No. 1. 9. Significantly enough, the O.P. No. 1 mentioned the date of her marriage with the petitioner in the FIR lodged on 6th April, 1997 as 8th August, 1994 whereas in her application before the learned Family Court, she gave such date as 8th August, 1993. Learned Court failed to appreciate the genetic inheritance by O.P. No. 1 by way of D.N.A. test or other medical tests. Learned Court failed to appreciate the genetic inheritance by O.P. No. 1 by way of D.N.A. test or other medical tests. The order dated 30th May, 2002 passed by the learned Family Court, Calcutta, thus, suffers from illegality and material irregularity and the petitioner in such facts and circumstances has filed the instant application praying for setting aside of the same. 10. In response to that, affidavit-in-opposition has been filed on behalf of O.P. Nos. 1 & 2 wherein the material allegations made by the petitioner had been denied, O.P. No. 1 categorically asserted that she was legally married wife and such marriage was duly solemnized on 8th August, 1993 according to Hindu Rites and Customs at Kalighat Temple and after the said marriage they started living together as husband and wife at No. 2, Bacharpara, Thakurpukur, Kolkata. It was stated that they led their conjugal life as husband and wife and a male child was born on 20th November, 1994. It was claimed that such O.P. No. 1 was taken by her husband to his own house at 4/3K/174, Sakuntala Park, now known as Hochi Minh Sarani, Kolkata but gradually thereafter the relationship between them became bad-particularly when her husband took one lady namely Smt. Gita Bose and after few days she introduced herself as Mrs. Gita Dey. This was followed by acts of torture inflicted upon her by the petitioner and Smt. Gita Dey. There was an attempt to project her as a mentally handicapped person. Thereafter, criminal case was initiated. Her husband, however, sought for unqualified apology and took O.P. No. 1 and the child to a flat at Munchipara, Dakhinayn at Biren Roy Row, Calcutta, but after about six months started inflicting further torture on her. There was even an attempt on her life. O.P. No. 1 lodged a complaint in Thakurpukur Police Station under section 323/325/ 498A of Indian Penal Code. There was an attempt for reconciliation before the settlement board where the petitioner undertook to pay a sum of Rs. 2,500/- per month towards maintenance of O.P. Nos. 1 & 2. Such settlement was made in the year of 1997 but the amount used to be paid irregularly. Petitioner was Assistant Manager (Purchase and Stores), Shipping Corporation of India having an income of about Rs. 25,000/- per month. He took voluntary retirement from service and received Rs. 2,500/- per month towards maintenance of O.P. Nos. 1 & 2. Such settlement was made in the year of 1997 but the amount used to be paid irregularly. Petitioner was Assistant Manager (Purchase and Stores), Shipping Corporation of India having an income of about Rs. 25,000/- per month. He took voluntary retirement from service and received Rs. 20 lacs but suddenly stopped paying maintenance to the present O.Ps. 11. Learned Counsel appearing for the petitioner, Mr. Haradhan Banerjee, has at the very outset pointed out that in view of an order of interim injunction passed by a competent Civil Court, the O.Ps. should not have proceeded with the application under section 125 of Criminal Procedure Code. Referring to the order dated 24th April, 2002 passed by the learned Civil Court, it is submitted that the present O.Ps, who are defendants before the learned Civil Court, have been restrained from claiming any right any where as the wife of plaintiff No. 1 who is petitioner in this case till 8th May, 2002. Subsequently, there had been extension of such interim order from time to time. 12. Learned Counsel, Mr. Banerjee, has categorically asserted that there could be no scope nor any justification for a Family Court to proceed with the said application under section 125 of Cr.P.C. ignoring, if not willfully disregarding, the order of a competent Civil Court. He has further stated that the O.P. No. 1 was specifically restrained from claiming any right anywhere as the wife of the present petitioner. By proceeding with the said application of under section 125 of the Cr.P.C., O.P. No. 1 literally defied and violated the said order of the learned Civil Court and thereby is liable to be proceeded with action for contempt of Court. 13. In response to this learned Counsel for the O.Ps. Mr. Biswanath Dutta has drawn attention of this Court to the order passed by the Honb'le Single Bench of this Court earlier in connection with C.R.R. No. 966 of 2002. Significantly enough, while disposing of the said case there was a clear direction upon the learned Judge, Family Court, to take up the matter within a period of 10 days from the date of communication of the order and to pass a reasoned order after hearing both sides. Significantly enough, while disposing of the said case there was a clear direction upon the learned Judge, Family Court, to take up the matter within a period of 10 days from the date of communication of the order and to pass a reasoned order after hearing both sides. It is perhaps necessary to mention further that there was also direction to the effect that after the matter relating to interim maintenance is disposed of, "The learned Judge will see that the original proceeding under section 125 Cr.P.C. is expedited and the same is concluded with utmost expedition without granting any unnecessary adjournment to either of the parties." 14. Thus, it is crystal clear that the learned Judge, Family Court, was hardly left with any choice. 15. Learned Counsel, Mr. Banerjee, appearing for the petitioner has drawn attention of the Court to the observation made by the Hon'ble Single Bench in connection with the said case which may be reproduced as follows:- "It further appears from the impugned order that there is no finding of the learned Judge regarding income of the petitioner's husband. In my considered view the impugned order suffers from illegality and the same is liable to be set aside." 16. Referring to the said observation it has been submitted by Mr. Banerjee that the impugned order which has been sought to be assailed herein also does not reflect any application of mind in regard to the income of the present petitioner. He then points out that on this score alone, the impugned order cannot be sustained. 17. After careful consideration of the order under challenge, I find that the learned Judge, Family Court applied its mind to the effect and referred to the allegation made in the application under section 125 of the Cr.P.C. that the present petitioner received a sum of Rs. 24 lacs (approx.) from his office after taking voluntary retirement. This aspect has not been sought to be brushed aside by any counter allegation or any material to the contrary. 18. 24 lacs (approx.) from his office after taking voluntary retirement. This aspect has not been sought to be brushed aside by any counter allegation or any material to the contrary. 18. Attention has been drawn to the decision in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr., reported in AIR 1999, Supreme Court, Page-3348, in support of the contention that whereas strict proof of performance of marriage is not required in connection with the proceeding under section 125 of Cr.P.C., it is sufficient if the claimant prima facie satisfies the Court that the claimant and her husband lived as husband and wife. 19. Mr. Banerjee, learned Counsel for the petitioner thereafter has referred to the decision in the case of Karamchand Ganga Pershad & Anr. vs. Union of India & Ors. (In both the appeals) Respondents; M/s. Munilal Bhagwat Sharan. (In both the appeals), reported in AIR 1971, Supreme Court, Page-1244, in support of the contention that the decisions of the Civil Courts are binding on Criminal Courts whereas the converse is not necessarily true. According to him, the order of the Civil Court restraining the O.P. No. 1 from claiming to be wife of the petitioner cannot be ignored or brushed aside by the learned Family Court. There is no doubt as to the legal position that Civil Court's order is binding on the Criminal Court. The facts and circumstances of the present case, however, are significantly different. 20. The order dated 24th April, 2002 passed by the learned 5th Court of Civil Judge (Junior Division), Alipore restraining the defendants in Title Suit No. 114 of 2002 from claiming any right anywhere as the wife and son of the plaintiff No. 1 was manifestly passed long before direction was given by the Hon'ble Bench of this Court upon the learned Judge, Family Court to dispose of the original proceeding under section 125 of Cr.P.C. in utmost expedition. In fact, the Hon'ble Single Bench of this Court gave the direction by the order dated 12th July, 2002. No doubt, learned Civil Court extended such order of restraint from time to time but, in view of the categorical direction given in C.R.R. No. 1630 of 2002, it was Hobson's Choice for the learned Judge, Family Court who had no option but to proceed with the matter. No doubt, learned Civil Court extended such order of restraint from time to time but, in view of the categorical direction given in C.R.R. No. 1630 of 2002, it was Hobson's Choice for the learned Judge, Family Court who had no option but to proceed with the matter. The peculiar background of the instant matter goes a long way to suggest that in such facts and circumstances, it cannot be said that the order passed by the learned Judge, Family Court suffers from any irregularity or illegality. 21. In this context it is also necessary to mention that the learned Judge, Family Court in the impugned order observed that subsequent to filing of the application under section 125 of Cr.P.C., the present petitioner filed the aforesaid suit before the learned Civil Court at Alipore on 24th April, 2002. The fact that there was already an order of interim maintenance granted in favour of the petitioner in Misc. Case No. 7 of 2002 was not brought to the notice of the learned Civil Court. According to learned Counsel for the O.Ps., this was an act of wilful suppression of material facts and as such there could be no scope for any grievance in that regard. The basic principle of judicial discipline certainly demands that any Court under the supervision and control of the High Court must comply with its direction. It is perhaps outside the scope of the instant application to enter into the merits of the case filed before the learned Civil Court at Alipore. But, in the peculiar facts and circumstances of the case, as referred to earlier, I don't think that the learned Judge, Family Court by passing the impugned order dated 30th May, 2002 has acted in an irregular or illegal manner. It is also perhaps necessary to mention in this connection that the application for maintenance, be it for the wife or the child be it legitimate or illegitimate, cannot be allowed to be protracted indefinitely. In fact, the spirit and object of granting interim maintenance will get frustrated if there is unnecessary and unreasonable delay in attending to such application for grant of interim maintenance. 22. In fact, the spirit and object of granting interim maintenance will get frustrated if there is unnecessary and unreasonable delay in attending to such application for grant of interim maintenance. 22. Reference has also been made by the learned Counsel for the petitioner to the decision in the case of Nand Lal Misra vs. Kan Lal Misra, reported in AIR 1960, Supreme Court, Page-882 but the said decision does not seem to have any application to the facts of the present case. 23. Learned Counsel appearing for the Opposite Parties is perfectly justified in drawing attention of this Court to the decision in the case of Pathumma & Anr. vs. Muhammad, reported in AIR 1986, Supreme Court, Page-1436 : 1986 Cri.L.J., Page-1070, wherein it has been held that the petitioner in an application under section 125 of Cr.P.C. is married wife or not, or the child is illegitimate or not, are pre-eminently questions of fact and the High Court is not justified in substituting its own view for that of Magistrate on question of fact. 24. Learned Counsel appearing for the Opposite Parties has also referred to the decision in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr., reported in AIR 1999, Supreme Court, Page-3348, in support of his contention that strict proof of marriage is not required in connection with a maintenance proceeding under section 125 of Cr.P.C. It is sufficient if the applicant/claimant prima facie satisfies the Court that she and her husband lived as husband and wife. Of course, in the present case, interim maintenance has not yet been granted in favour of O.P. No. 1 and that aspect has been kept open at this stage. 25. In the above facts and circumstances, I am of the opinion that the interim order restraining the present O.P. No. 1 from establishing her right as wife of the present petitioner cannot be said to have an overriding effect on the order passed by the Hon'ble Single Bench of this Court directing the learned Judge, Family Court to dispose of the application under section 125 of Cr.P.C. with utmost expedition. The fact remains that interim order of the Civil Court, as referred to earlier, was obtained at a time when there was already an order of maintenance granted by the learned Judge, Family Court, Calcutta. The fact remains that interim order of the Civil Court, as referred to earlier, was obtained at a time when there was already an order of maintenance granted by the learned Judge, Family Court, Calcutta. It also appears on careful scrutiny of the facts and materials and as well as the impugned order passed by the learned Judge, Family Court, Calcutta that there was sufficient application of mind in regard to the financial status of the present petitioner. In my opinion there need not be any elaborate analysis in this regard while passing an order of interim maintenance. There was clear assertion before the learned Judge that the present petitioner after taking voluntary retirement obtained a sum of Rs. 24 lacs. This important aspect could not be brushed aside and, as such, could not have been lost sight of by the learned Trial Judge. 26. Considering all such facts and circumstances I am inclined to hold that there was no impropriety, illegality or irregularity in the order under challenge which calls for or justifies any interference by this Court. There is no reason in the peculiar background of the present case for this Court to exercise its power under Article 227 of the Constitution of India. Accordingly, the present application be dismissed. 27. There is no order as to costs. Interim order, if any, stands vacated. 28. Learned Judge, Family Court, Calcutta is hereby directed to proceed with the Misc. Case No. 7 of 2002 as expeditiously as possible and is further directed to proceed with the hearing from day to day basis. Let a copy of the order be sent to the learned Judge, Family Court, Calcutta at once. 30. Urgent xerox certified copy, if applied for, be supplied to the parties on top priority basis. Appeal dismissed.