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2008 DIGILAW 46 (CAL)

Asit Ghosh v. The State of West Bengal

2008-01-14

KALIDAS MUKHERJEE

body2008
Judgment KALIDAS MUKHERJEE, J. 1. This application under Section 397, 401 and 482 of the Cr.P.C. is directed against the order dated 29.11.2004 passed by learned Judicial Magistrate, 5th Court, Howrah in Misc. Case No. 212 of 2002, T.R. No. 13 of 2002 whereby and whereunder the learned Magistrate allowed the Misc. case directing the O.P. to pay maintenance under Section 125 Cr.P.C. @ Rs.1,000/- per month to the petitioner and @ Rs.750/- per month to the minor daughter. The O.P. No. 2 herein was the petitioner under Section 125 Cr.P.C. before the learned Court below and her case, in short, is that she was married with O.P. Asit Ghosh and after marriage went to her matrimonial home which was in joint mess with some of her brothers-in-law. At the time of negotiation of marriage, the O.P. represented that he was a class–IV employee in the department of Fisheries, Government of West Bengal and his salary was Rs.3,000/- per month. After six months of marriage, her husband/O.P. started demanding more cash and ornament which were presented to her by her father and upon her refusal, he started committing torture upon her mentally and physically with tacit support of the other members of the family. The petitioner disclosed about her sufferings to her father and other members of her father’s family, but, they consoled her and asked her to bear such treatment expecting that the matter would be normal in future. The petitioner gave birth to a female baby on 16.09.89. The O.P. did not take any information of the petitioner/wife and at last her elder brother took her to her matrimonial home. After her arrival there, her husband started committing torture upon her both mentally and physically and at last her husband’s elder brother took her to her father’s house where she had been living being deserted by her husband. The petitioner/wife is unable to maintain herself and her daughter, but, her husband has 75 bighas of land jointly with his brother. That apart, the husband earns Rs.8,000/- as salary. For the aforesaid reasons, the wife/petitioner filed a petition under Section 125 Cr.P.C. before the learned Court below. 2. The husband/petitioner herein filed the revisional application contending, inter alia, that the petitioner/wife was not willing to reside in her matrimonial home. All other allegations have been denied by the husband/petitioner herein. 3. That apart, the husband earns Rs.8,000/- as salary. For the aforesaid reasons, the wife/petitioner filed a petition under Section 125 Cr.P.C. before the learned Court below. 2. The husband/petitioner herein filed the revisional application contending, inter alia, that the petitioner/wife was not willing to reside in her matrimonial home. All other allegations have been denied by the husband/petitioner herein. 3. The case was earlier disposed of by the learned Magistrate wherein the petitioner/wife was awarded maintenance of Rs.225/- per month for herself and her daughter. The wife being aggrieved by the said order, preferred Revisional Application bearing No. 507 of 2004 before this Hon’ble Court and upon hearing both sides the order passed by the learned Magistrate was set aside and the case was sent back before the learned Magistrate to dispose of the application under Section 125 Cr.P.C. in accordance with law and, if, necessary by recording evidence of both sides and to dispose of the case within three months from the date of communication of the order. Thereafter, the learned Magistrate by the impugned judgment and order allowed the Misc. case awarding maintenance @ Rs.1,000/- per month for the wife and Rs.750/- per month for the minor daughter. Being aggrieved by the said order passed by the learned Magistrate, the husband has preferred the instant revisional application. 4. The learned Magistrate upon consideration of the materials on record has recorded to the finding that the petitioner/wife is the legally married wife of the O.P. and the O.P. neglected and refused to maintain his wife and daughter. The learned Magistrate also held that there was no refusal on the part of the wife to live with her husband and that the petitioner has no source of independent income. The learned Magistrate has further held that the O.P./husband has sufficient means to maintain his wife and daughter and ultimately the learned Magistrate awarded the maintenance as stated above. The learned Counsel appearing on behalf of the husband/petitioner herein submits that the husband wanted to take back his wife, but, the wife did not come to the matrimonial home. It is further contended that the husband/petitioner herein is a daily wage earner @ Rs.84.81 and the evidence of the Assistant Director (O.P.W. 3) was not taken into consideration by the learned Magistrate. It is further contended that the husband/petitioner herein is a daily wage earner @ Rs.84.81 and the evidence of the Assistant Director (O.P.W. 3) was not taken into consideration by the learned Magistrate. It is submitted that as regards torture, there was no complaint or G.D. and the learned Magistrate was not justified in passing the impugned order. 5. The learned Counsel appearing on behalf of the Wife/O.P. herein submits that there is sufficient evidence to show that the husband neglected and refused to maintain his wife and daughter and that he has sufficient means to pay maintenance. It is further submitted that the wife/O.P. herein is unable to maintain herself and her daughter and there is no ground to interfere with the impugned order passed by the learned Magistrate. 6. P.W. 1 is the petitioner/wife before the learned Court below who has stated that after marriage she lived with her husband in the joint mess of the matrimonial home and that six months after marriage the O.P./husband asked her to bring money and articles from her parents and committed torture upon her being instigated by the other inmates of the family. It is in her evidence that on 16.09.89 she gave birth to a baby and her husband, although informed, did not come to see the child. It is also in her evidence that when her child became six months old, her brother took her to the matrimonial home, but, her husband again committed torture upon her on the ground of non-payment of dowry. She also stated that her second brother-in-law took her to her father’s house and since then she has been living there. It is in her evidence that the O.P./husband earns Rs.8,000/- per month as his salary from the Fishery Department of the Government of West Bengal and earns Rs.15,000/- per year from the landed property. It is in her cross-examination that she did not lodge any diary with the police as the O.P. beat her. P.W. 2 is the brother of P.W. 1 and he has corroborated P.W. 1 on material points. 7. O.P.W. 1, the husband has stated that his wife left his house creating troubles in the family in his absence and attempt was made to solve the problem in the village salish, but to no effect. P.W. 2 is the brother of P.W. 1 and he has corroborated P.W. 1 on material points. 7. O.P.W. 1, the husband has stated that his wife left his house creating troubles in the family in his absence and attempt was made to solve the problem in the village salish, but to no effect. It is in his evidence that he works in the Fishery Department at Kalyani as a casual labourer and he gets job for 165 to 240 days @ Rs.80/- per day. He has denied about the landed property. O.P.W. 2 corroborated O.P.W. 1 saying that O.P.W. 1 is a casual labourer @ Rs.80/- per day and that they have no landed property. O.P.W. 3 is the Assistant Director of Fisheries who has stated that the O.P. W. 1 is a casual labourer @ Rs.84.81 per day and he was provided work not exceeding 240 days per year. 8. The learned Counsel appearing on behalf of the husband/petitioner herein submits that from the evidence it is clear that the O.P. W. 1 is a casual labourer @ Rs.84.81 per day and a photo copy of the pay roll was produced by the O.P.W. 3 in the learned Court below which was not admitted in evidence by the learned Magistrate. It is the contention of the learned Counsel that in view of the decisions of the learned Single Judge of this Hon’ble Court as reported in 2002(3) CHN 151 [Biswajit Chakraborty Vs. Mira Sen Ray] and AIR 2004(Cal) 204 [Dwarika Kamal Bajpai Vs. Kedar Prasad Bajpai and another], the photocopy of the pay roll ought to have been admitted in evidence in the learned Court below. 9. On perusal of the entire evidence on record I find that there is ample evidence as to the negligence and refusal to maintain the wife and the daughter by the husband and that the wife is unable to maintain herself and her daughter. As regards the financial condition of the husband, O.P.W. 3 has stated that the O.P.W. 1 is a casual labourer @ Rs.84.81 per day. But the P.Ws have stated that the husband has landed property also, although no document to that effect was supplied. As regards the financial condition of the husband, O.P.W. 3 has stated that the O.P.W. 1 is a casual labourer @ Rs.84.81 per day. But the P.Ws have stated that the husband has landed property also, although no document to that effect was supplied. In this regard the learned Magistrate has observed that the husband is an able bodied person who does not suffer from any physical or mental incapability and, therefore, he has sufficient means to pay maintenance to the petitioner and her daughter. I find that there is no ground to interfere with the findings of the learned Magistrate. There is no illegality or material irregularity in the impugned order passed by the learned Magistrate. 10. In the result, the revisional application fails and the same stands dismissed with no order as to costs.