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2008 DIGILAW 707 (CAL)

Bina Mondal Nee Das v. STATE OF WEST BENGAL

2008-07-18

ARUNABHA BASU

body2008
Judgment :- (1.) THE revisional application under Section 482 of the Code of Criminal Procedure is directed against the judgment and order dated 3. 3. 2006 passed by the learned Additional Sessions Judge, 2nd Court, Murshidabad in Criminal Motion No. 143 of 2005, whereby and whereunder learned Additional Sessions Judge set aside the judgment and order passed by learned Chief Judicial Magistrate, Murshidabad in M. R. Case No. 79 of 2000 granting monthly maintenance of Rs. 1,000/-to the petitioner with effect from 11. 2. 2000, along with the litigation cost of Rs. 200/ -. (2.) PETITIONER herein filed an application under Section 125 of the Code of Criminal Procedure, stating inter alia that the marriage between petitioner and opposite party was solemnised according to Hindu rites. Petitioner started residing with her husband in the matrimonial house. Opposite party demanded a sum of Rs. 50,000/- from the father of the petitioner and subjected the petitioner to cruelty and torture, when the said demand was not met. The opposite party also developed illicit relationship with another woman and when the petitioner protested, she was assaulted and driven out from her matrimonial house. Opposite party refused and neglected to provide maintenance to the petitioner. Opposite party is a school teacher besides owning landed property. His income is Rs. 6,000/- per month. Petitioner is unable to maintain herself and prayed for an amount of Rs. 1,500/- as maintenance. (3.) BY way of subsequent amendment it was recited in the application that opposite party has married one Barnali Mondal, daughter of Sudhanshu Mondal and a son named Bappa Mondal is born out of said marriage. (4.) OPPOSITE party contested the said application by filing written objection denying all material averments as mentioned in the petition. The positive case of the opposite party as per the written objection appears to be that the petitioner left her matrimonial house after quarreling with the opposite party. Petitioner refused to return to the opposite party in spite of repeated attempts. Petitioner disclosed that she intends to terminate her marriage with the opposite party. (5.) A salish was arranged on 11. 5. 1999, which was attended by Panchayat Pradhan and also the parties to the application along with their relatives. A written document was executed between the parties under which a sum of Rs. 7,000/-along with articles was returned to the petitioner. (5.) A salish was arranged on 11. 5. 1999, which was attended by Panchayat Pradhan and also the parties to the application along with their relatives. A written document was executed between the parties under which a sum of Rs. 7,000/-along with articles was returned to the petitioner. It was also agreed between the parties in terms of the said agreement that the marriage tie between the parties is terminated and the petitioner also agreed to surrender her future claim of maintenance. (6.) THE learned Additional Sessions Judge took into consideration the agreement between the parties, which was marked as exhibit A. (7.) LEARNED Additional Sessions Judge proceeded to deal with the revisional application on the basis of exhibit A, which according to the learned Additional Sessions Judge was duly proved. The learned Additional Sessions Judge also took into consideration the presence of many persons including the petitioner and opposite party along with their relations. Learned Additional Sessions Judge was of the view that the deed was executed as per the intention of the parties. (8.) IT is the contention of the learned Additional Sessions Judge, " It is stated in the deed that both the parties are not able to live together as they are unable to accept husband and wife to each other and they want to live separately. As per the salish the husband returned all the articles and cash of Rs. 7000/ -. " (9.) LEARNED Additional Sessions Judge also held, " It is fact that there is mention in the document that Bina Mondal would not claim maintenance which is of course not lawful, but the intention of the document goes to show the voluntariness of the parties to live separately from each other and it proves that the parties are living separately by mutual consent. " (10) THE learned Additional Sessions Judge was of the view that subsection (4) to Section 125 of the Code of Criminal Procedure is applicable in this case and as the petitioner is residing separately by mutual consent, then she is not entitled to get any maintenance. (11.) IN compliance with the order passed by this Court on 29. 11. 2007, the original record is produced. I have examined exhibit A, which is written in Bengali. The learned Additional Sessions Judge put much emphasis in the document. There is recital that the parties want to live separately. (11.) IN compliance with the order passed by this Court on 29. 11. 2007, the original record is produced. I have examined exhibit A, which is written in Bengali. The learned Additional Sessions Judge put much emphasis in the document. There is recital that the parties want to live separately. A careful perusal of the said document, however, does not indicate any such recital as observed by the learned Additional Sessions Judge. (12.) EXHIBIT A is a document created by the parties whereby in effect the marriage tie between the parties was terminated. (13.) IN the said document it is stated that with effect from that date that is 11. 6. 1999, petitioner is surrendering her claim to be the wife of opposite party and the opposite party is free and the petitioner shall not file any case, even if, the opposite party marries again. It was also agreed that if petitioner marries again, the opposite party cannot file a case and if such case is filed, the same will be dismissed. (14.) I am constrained to observe that learned Additional Sessions Judge misdirected himself about the scope of exhibit A and the provisions of law, applicable to such agreement. (15.) IT may be pointed out that learned Chief Judicial Magistrate, while deciding the application also took into consideration the scope of exhibit A and came to a positive finding, "so in view of the ruling cited above, I am to hold that exhibit A is an invalid document and the marriage between the parties cannot be dissolved by executing said document." (16.) IT is somewhat unfortunate that learned Additional Sessions Judge passed strictures against the learned Chief Judicial Magistrate and held, "Even the existing law is not looked into in course of the judgment." (17.) THE agreement in question which is marked as exhibit A is not only an invalid document as held by the learned Chief Judicial Magistrate but is an illegal document which must be held to be void. (18.) SECTION 23 of the Contract Act will be relevant. The said section is set out below :- " Section 23. (18.) SECTION 23 of the Contract Act will be relevant. The said section is set out below :- " Section 23. What consideration and objects are lawful, and what not.-The consideration or object of an agreement is lawful, unless-it is forbidden by law ; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent ; or involves or implies, injury to the person or property of another ; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. " (19.) EXHIBIT A is nothing but a divorce deed effected between the parties. I am constrained to observe that execution of such deed is in direct violation of Section 23 of the Contract Act and on the basis of such deed if the parties are permitted to terminate their marriage then there will be serious consequence in the society. (20.) IT is evident that one of the parties is a primary school teacher and it is expected that while preparing an agreement, which is against law, the educated persons will refrain from entering into such agreement in order to achieve some petty gains. (21.) A marriage solemnised by following Hindu rites can only be dissolved or terminated under the provisions of Hindu Marriage Act, 1955. (22.) BY no other way a marriage between two Hindus can be terminated. The agreement between the petitioner and opposite party is an agreement, which is forbidden in law. The said agreement is also immoral and opposed to public policy. Such agreement being void cannot carry any effect and cannot be taken into consideration for the purpose of deciding an application for maintenance filed under Section 125 of the Code of Criminal Procedure. (23.) LEARNED Additional Sessions Judge completely misdirected himself when he entered into a lengthy discussion about the effect of such agreement. The approach by the learned Additional Sessions Judge when he ignored the finding of the learned Chief Judicial Magistrate, that the agreement is invalid in the eye of law cannot be supported. (24.) EXHIBIT A cannot be taken into consideration in order to determine whether the wife is residing separately by mutual consent. The approach by the learned Additional Sessions Judge when he ignored the finding of the learned Chief Judicial Magistrate, that the agreement is invalid in the eye of law cannot be supported. (24.) EXHIBIT A cannot be taken into consideration in order to determine whether the wife is residing separately by mutual consent. (25.) SUB section (4) to Section 125 of the Code of Criminal Procedure runs as follows :- " 125. (4) No wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent. " (26.) SO far as the present case is concerned, careful perusal of the written objection filed by the opposite party would show that no plea was taken by the said opposite party in the written objection that wife is residing separately by mutual consent. That plea was raised by the opposite party only on the basis of recital in exhibit A and when exhibit A is left out of consideration then the opposite party was required to establish the said plea by adducing appropriate evidence to that effect. It is the case of the petitioner that she was forced to live her husband as she was subjected to cruelty and torture over demand of money and ultimately driven out after the assault. When the petitioner was forced to reside in the house of her father, it cannot be said that she is residing there by mutual consent. In fact there is no evidence in support of the contention that petitioner is residing separately by mutual consent. In the absence of any evidence, it is not clear to me as to how such a finding that wife is residing separately by mutual consent can at all be arrived by the learned Additional Sessions Judge. (27.) LEARNED Advocate for the petitioner in support of his contention has referred to a decision of Kerala High Court in A. S. N. Nair v. Sulochana reported in 1981 Cr LJ 1898. (28.) IN the said decision the Division Bench of Kerala High Court dealt with the scope of sub-section (4) to Section 125 of the Code of Criminal Procedure. (28.) IN the said decision the Division Bench of Kerala High Court dealt with the scope of sub-section (4) to Section 125 of the Code of Criminal Procedure. (29.) I have already observed that as the exhibit A is an illegal document and as Section 23 of the Contract Act stipulates that such illegal agreement cannot be legally enforced then all recital in the said agreement must be left out from consideration. There is no evidence or even pleading in the written objection by the opposite party that the wife is living separately by mutual consent. The decision as referred to by the learned Advocate for the petitioner has no manner of application in the facts situation of this case. (30.) LEARNED Advocate for the opposite party, however, referred to the decision of Supreme Court in Gurmit Kaur v. Surjit Singh @ Jeet Singh reported in 1996 C Cr LR (SC) 43, wherein the Supreme Court held that the concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. (31.) SO far as the present case is concerned, it is the contention by the learned Advocate for the petitioner that consequent to the agreement which is exhibit A, the parties are residing separately by mutual consent. Exhibit A is in fact a deed of divorce and as the said document is void and cannot be legally enforced, so it cannot be stated that the said document may be taken as agreement between the parties to live separately by mutual consent. (32.) ON consideration of the entire matter, I am of the view that the learned Additional Sessions Judge failed to appreciate the real scope of dispute between the parties. On the contrary learned Chief Judicial Magistrate, after correctly analyzing the evidence led in this case and after taking into consideration, that exhibit A is an illegal document rightly awarded maintenance in favour of the petitioner wife. (33.) UNDER these circumstances, I am of the view that the judgment and order passed by the learned Additional Sessions Judge is required to be set aside and quashed. (34.) THE revisional application is allowed. (33.) UNDER these circumstances, I am of the view that the judgment and order passed by the learned Additional Sessions Judge is required to be set aside and quashed. (34.) THE revisional application is allowed. The order passed by the Additional Sessions Judge in connection with Criminal Motion No. 143 of 2005 is hereby set aside and the order passed by the learned Chief Judicial Magistrate in connection with M. R. Case No. 79 of 2000 is hereby restored. (35.) IN view of disposal of the revisional application, there appears to be no necessity to pass order on application being CRAN No. 1660 of 2008. The same stands disposed of along with the revisional application. (36.) CRIMINAL Section is directed to forward a copy of the order along with L. C. R. to the learned Court below for information and taking necessary action.