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2004 DIGILAW 292 (CAL)

DEBABRATA BASU v. STATE OF WEST BENGAL

2004-04-26

ASIT KUMAR BISI

body2004
ASIT KUMAR BISI, J. ( 1 ) MR. Acharyya, learned Advocate appears for the petitioner and Mr. Mitra, learned Advocate appears for the O. P. No. 2. None appears on behalf of the O. P, No. 1. Heard Mr. Acharyya learned Advocate for the petitioner and mr. Mitra, learned Advocate for the O. P. No. 2. ( 2 ) THE present revisional application under Section 401 read with section 482, Cr. P. C. filed by the petitioner is directed against the order dated 12. 12. 03 passed by the learned Judicial Magistrate, 8th Court Alipore in criminal Misc Case No. 28/2000 corresponding to T. R. No. 11/01 under section 125, Cr. P. C. By the order impugned the learned Magistrate disposed of the petition filed by the present petitioner observing that his prayer could not be entertained at that stage and there was no scope to frame preliminary issue on the point of maintainability of the proceeding in a proceeding under section 125, Cr. P. C. ( 3 ) ON hearing Mr. Acharyya, learned Advocate for the petitioner and mr. Mitra, learned Advocate for the O. R No. 2 and joining through the materials on record I find that an application under Section 12 of the Hindu marriage Act, 1955 was filed by the present O. P. No. 2 against the present petitioner in the Court of the learned District Judge, Barasat North 24-Parganas and by the order being order No. 13 dated 2. 7. 01 passed in Mat Suit No. 102/ 2000 the learned Additional District Judge, Second Court, North 24-Parganas barasat annulled the marriage between the present O. R and the present petitioner which was solemnised on 1. 3. 99 by a decree of nullity under section 12 of the Hindu Marriage Act. Admittedly no appeal has been preferred against the said judgment and decree passed by the learned additional District Judge Second Court Barasat, North 24-Parganas in the said Matrimonial Suit. ( 4 ) FROM the above materials on record it is crystal clear that the marriage between the parties has been annulled under Section 12 of the hindu Marriage Act. it is settled law that the parties whose marriage has been annulled can no longer enjoy the status of husband and wife. ( 4 ) FROM the above materials on record it is crystal clear that the marriage between the parties has been annulled under Section 12 of the hindu Marriage Act. it is settled law that the parties whose marriage has been annulled can no longer enjoy the status of husband and wife. in such situation an application for maintenance under Section 125 of the Code of criminal Procedure by the wife whose marriage has been annulled under section 12 of the Hindu Marriage Act is not at all maintainable. in the instant case it appears from the materials on record that the wife herself filed an application under Section 12 of the Hindu Marriage Act before the learned district Judge, Barasat North 24-Parganas praying for annulment of marriage between her and the husband petitioner on the ground of impotency of the husband and by the aforesaid order dated 2. 7. 01 the wife obtained the decree passed by the learned Additional District Judge, Second Court North 24-Parganas Barasat whereby the marriage between the wife being present o. P. No. 2 and the husband being the present petitioner has been annulled. Mr. Acharyya, learned Advocate for the petitioner has pertinently cited K. Sivarama v. K. Bharathi and Anr reported in 1986 Cr LJ 317 and Krishan Gopal v. Usha Rani reported in 1982 Cr LJ 901 in support of his contention that when a decree for annulment of marriage between the parties was passed under Section 12 of the Hindu Marriage Act the application for maintenance under Section 125, Cr. P. C. is not maintainable. ( 5 ) HAVING regard to the materials on record and the facts and circumstances emerging therefrom I am clearly of the view that the association of marriage between the parties is irrevocably terminated because of the decree of nullity and as such O. R No. 2 cannot claim maintenance under section 125, Cr. P. C. The principle of law as pointed out above is quite well settled on this score. ( 6 ) FOR the foregoing reasons I find sufficient ground for allowing the instant revisional application filed by the petitioner. The revisional application is accordingly allowed. The impugned order dated 12. 12. 03 passed by the learned Judicial Magistrate, 8th Court, Alipore in Criminal Misc Case No. 28/ 2000 corresponding to T. R. No. 11/01 is set aside. The proceeding under section 125, Cr. The revisional application is accordingly allowed. The impugned order dated 12. 12. 03 passed by the learned Judicial Magistrate, 8th Court, Alipore in Criminal Misc Case No. 28/ 2000 corresponding to T. R. No. 11/01 is set aside. The proceeding under section 125, Cr. RC. being Criminal Misc. Case No. 28/2000 pending in the court of the learned 8th Judicial Magistrate, Alipore be quashed. ( 7 ) LET a copy of this order be sent down to the learned Court below forthwith.