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2007 DIGILAW 477 (CAL)

Moushumi Sarkar v. Abhijit Sarkar

2007-06-29

TAPAN MUKHERJEE

body2007
Judgment :- (1.) THIS revisional application is directed against the order dated 10.1.07 passed by the learned Magistrate, 1st Class in case No. M 488 of 2004 under section 125 Cr. PC. (2.) THE petitioner filed a petition under section 125 Cr. PC, against her husband for monthly maintenance allowance of Rs. 15,000/- contending that the petitioner was subjected to cruelty by her husband and other in-laws after marriage and due to torture, the petitioner has been living in her paternal house. The o. p.-husband, in spite of having sufficient means is not maintaining the petitioner who is unable to maintain herself and hence this petition for maintenance allowance was filed. (3.) LEARNED Magistrate disbelieved the story of torture and dismissed the application. (4.) BEING aggrieved by the said order, the petitioner-wife has preferred this revision. (5.) IT has been contended by the learned lawyer for the revisionist that the learned Magistrate committed serious and grave error in recording the actual evidence given by the petitioner and passed the impugned order relying on such incorrect recording of her evidence. The evidence was recorded at the fag end of the day and petitioner did not get opportunity to go through her evidence. The petitioner prayed for correction of the said erroneous recording of her evidence before the learned Court but the said application was rejected by the learned Magistrate by his order dated 11.4.07. The dismissal of the application under section 125 Cr. PC by the impugned order is illegal and shows non-application of the mind by the learned Magistrate. The petitioner proved that she was unable to maintain herself and no case under section 125 (4) Cr. PC justifying refusal of maintenance has been made out and the impugned order of the learned Magistrate is liable to be set aside with the direction to the learned Magistrate to re-hear the case afresh after correcting the evidence. (6.) LEARNED lawyer for the petitioner has further contended that in view of the decision in the case of State of Maharashtra vs. Ramdas Srinibas Nayek reported in 1982 (2) SCC 463 , the Apex Court laid down the law for correction of the evidence and the petitioner filed application for correction but learned magistrate did not observe that the evidence was correctly recorded but dismissed the application for correction of evidence treating the petitioner for correction as misconceived and frivolous. The impugned order passed on wrong recording of the evidence of the P.W.1 and refusal of the learned Magistrate to correct the errors has occasioned in failure of justice. (7.) LEARNED lawyer has further contended that the petitioner has got service with effect from April, 2007 in which her monthly salary is Rs. 5,000/ -. The said job is a private and temporary job and such earning does not stand on the way of allowing the petitioner for maintenance allowance. (8.) LEARNED lawyer has further contended that in the impugned judgment, the learned Magistrate has observed that the petitioner during examination stated that on the occasion of Swad Ceremony, she was forcibly administered the spurious cow-urine on 14.2.2003 but learned Magistrate recorded the date as 14.2.2004 and obviously when the petitioner was asked whether any such incident took place on 14.2.2004, the petitioner answered in the negative. He has further contended that during cross-examination, the petitioner stated that on 22.4.2003, the O.P. kicked at the stitched portion of the belly of the petitioner but the learned Magistrate recorded the date as 22.4.2004 instead of 22.4.2003. So obviously the petitioner admitted during cross-examination that on 22.4.2004, the o.p. was in U.K. The learned Magistrate took advantage of such statement and without considering that he recorded the evidence of the petitioner wrongly held that the fact of torture by o. p. on 22.4.2004 failed and he also wrongly held on the basis of his wrong recording that the incident of administering spurious cow-urine also failed as the petitioner admitted that no such incident took place on 14.2.2004. Had the evidence of the petitioner been correctly recorded then there was no occasion for the learned Magistrate to arrive at such an erroneous finding in the matter of administration of cow-urine and kicking at the stitched portion of her belly. (9.) LD. Counsel for the petitioner has further contended that petitioner did not get opportunity to adduce evidence of her father. (10.) LEARNED lawyer for the o. p. husband has supported the order of the learned Magistrate and he also submitted that the evidence of the petitioner was correctly recorded and there was no scope for correction of the same and there was no scope of remanding the matter to the learned Magistrate for fresh hearing of the petition for maintenance allowance. (11.) LEARNED lawyer for the respondent has further contended that the story of torture has failed and obviously there was no ground for refusal of the petitioner-wife to live separately from her husband and she was not entitled to maintenance allowance. (12.) LEARNED lawyer for the respondent has further contended that the petitioner had got enough opportunity to go through her evidence. Her evidence was concluded on 4.7.06. The case continued. Argument was heard. The petitioner did not make any objection regarding wrong recording. The impugned order was passed on 10.1.2007. The petitioner did not make any objection about wrong recording even immediately after the disposal of the case. Only to the month of February, 2007 the petitioner came up with the application for correction of the evidence. There was no sufficient cause for such great delay in making such application and it is clear that the said application was made only to avoid the order of the learned Magistrate. (13.) IT appears that in the case reported in 1982 (2) SCC at page 463 it was held that the statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the fact so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. (14.) SO in view of such judgment of the Apex Court, the matters of judicial record are unquestionable. They are not open to doubt. In this case, the evidence of the petitioner was recorded by the learned Magistrate on 4.3.2006, 3.7.2006 and on 4.7.2006. The o.p. was examined on 11.9.2006, 19.9.2006 and 4.12.2006. (14.) SO in view of such judgment of the Apex Court, the matters of judicial record are unquestionable. They are not open to doubt. In this case, the evidence of the petitioner was recorded by the learned Magistrate on 4.3.2006, 3.7.2006 and on 4.7.2006. The o.p. was examined on 11.9.2006, 19.9.2006 and 4.12.2006. It is alleged by the petitioner that on 4.3.2006 after her deposition was recorded at the fag end of the day, the petitioner requested the learned Magistrate to allow her some time for going through her statement that had been recorded and learned Magistrate assured that her evidence was correctly recorded and petitioner should not worry about anything and the petitioner signed her evidence and it was not possible for her to see what was recorded. When she was cross-examined on 4.3.2006, she was alerted about such wrong recording, but curiosity enough, the petitioner did not file any application for such wrong recording. The case continued and the petitioner stated that only one date was corrected and other dates were not corrected. The petitioner did not file any application and after the judgment was delivered on 10.1.07 and only in February, 2007 after long delay when the matter was not fresh in the mind of the learned Magistrate she filed an application for correction of her evidence. The application was considered by the learned Magistrate and the same was rejected by the order dated 11.4.07. He referred to the judgment of the Apex court and observed that the petition was not timely and the same was misconceived and frivolous. The order of the learned Magistrate stands final in this regard and the said matter of wrong recording cannot be reagitated. (15.) IN view of the fact that the evidence does not stand corrected, the evidence as it stands should be considered. As regards torture, learned Magistrate found that the petitioner contended that on 14.2.2004, she was forcibly administered spurious cow-urine on the occasion of swad Ceremony and she admitted in her cross-examination that no such incident took place on 14.2.2004 and, therefore, obviously such evidence of administration of spurious cow-urine cannot be believed and learned Magistrate also further disbelieved the story of kicking at stitched portion of her belly on 22.4.2004 as the o.p. was in U.K. on that date and such finding of the learned Magistrate cannot be questioned. Even though it is contended that after such administration of such cow-urine, the petitioner was examined by the doctor and there was pathological test but no doctor was examined in support of the fact that cow-urine was administered in order to support the occurrences of torture no corroborative evidence was adduced by the petitioner. Of course, the petitioner contended that she prayed for examining her further but that was not allowed. But it appears that the petitioner closed her case. So, the petitioner failed to prove the story of torture and consequently, there is nothing to substantiate that the husband of the petitioner neglected to maintain the petitioner. The fact that petitioner was admitted to computer course by o. p. rebels against story of torture. The fact remains that the petitioner resides in her paternal house and she lives separately with her husband. When the story of torture fails, it can be said that there is no just ground on the part of the petitioner to live separately from her husband and consequently the claim of maintenance allowance by the petitioner is barred under section 125 (4) Cr. PC. (16.) IN the supplementary affidavit, it has been admitted by the petitioner that she has got a service and her monthly income is Rs. 5,000a. The petitioner does not specify as to how much she requires for her maintenance. But the fact remains that she has got service and she is able to maintain herself. This fact also takes the wind out of the sail of the ship of claim for maintenance allowance from the o. p. (17.) THE fact remains that the petitioner is not unable to maintain herself and the o. p. did not neglect or refuse to maintain the petitioner. The petitioner has failed to prove that she has been living separately in her fathers house for the torture of her husband. So, there is no Just ground for her refusal to live with her husband and the petitioner is not entitled to get the relief of maintenance allowance. There is no ground of remanding the case to the learned magistrate for hearing afresh. Consequently, this revisional application is bound to fail. (18.) THE revisional application is dismissed on contest accordingly. I make no order as to costs. Appeal dismissed.