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Calcutta High Court · body

2009 DIGILAW 62 (CAL)

Vinod KR. Lodha v. Reena Lodha (Nee Jain)

2009-02-04

ARUNABHA BASU

body2009
Judgment :- (1) The application under Section 482 of the Code of Criminal Procedure read with Section 19 of the Family Courts Act, 1984 is directed against the judgment and order passed by Judge, Family Court at Calcutta in connection with Misc. Case No. 24 of 1999 whereby and whereunder learned Court below allowed the application and awarded a sum of Rs. 1,500/-per month payable by the petitioner herein to the Opposite Party. (2) It appears from the order under challenge that initially he learned Court below while disposing the application under Section 125 of the Code of Criminal Procedure directed grant of maintenance in favour of the minor daughter of the petitioner herein but the prayer for maintenance of the Opposite Party herein was refused. (3) The Opposite Party herein questioned the legality and propriety of the order passed by the learned Judge, Family Court in connection with C.R.R. No. 539 of 2001, whereby the learned Single Judge of this Court set aside the order passed by the learned Judge, Family Court, so far as it relates to the refusal to grant maintenance to Opposite Party and directed the learned Judge, Family Court to re-hear the matter after giving an opportunity to the parties to adduce evidence. (4) The impugned order under challenge is the out come of the direction passed by the learned Judge of this Court in connection with C.R.R. No. 539 of 2001. (5) Before discussing the merit of the application, I like to point out that under subsection (2) to Section 19 of the Family Courts Act, 1984 (hereinafter called the Act), it is provided that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order under Chapter IX of the Code of Criminal Procedure, 1973. (6) The application under Section 125 of the Code of Criminal Procedure falls under Chapter IX of the Code of Criminal Procedure and normally the order passed by Judge of the Family Court shall not be appealable in view of clear language of sub-section (2) to Section 19 of the Act. However, an exception to the general rule is made under subsection (4) of the Section 19 of the Act, and the same is set out below: "19. However, an exception to the general rule is made under subsection (4) of the Section 19 of the Act, and the same is set out below: "19. (4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973, (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding." (7) Sub-section (5) of Section 19 further stipulates that no appeal or revision shall lie to any Court from any judgement, order or decree of a Family Court. (8) It is evident that save and except the.cases falling under sub-section (4) of Section 19 of the Act, the final order passed by a Family Court reaches finality and the same cannot be challenged before any Court in view of the clear language as appearing under sub-section (2) and sub-section (5) of Section 19 of the Act. (9) The scope of judicial review of the order passed by the Family Court by the High Court is limited to the extent that only correctness, legality or propriety of the order which is not an interlocutory order as to the regularity of such proceeding can only be challenged before this Court in terms of language appearing under sub-section (4) of Section 19 of the Act. (10) Keeping the legal proposition in mind, the matter is required to be examined. (11) In the application, petitioner herein is mainly aggrieved by the decision of the learned Court below about the quantum of maintenance. According to the petitioner herein the Opposite Party, who is the wife of petitioner has sufficient means, which in indicated from her Bank statement as well as from the purchase of shares in different organisations. (12) The income of the Opposite Party as sought to be highlighted by the petitioner herein was taken into consideration in detail by the learned Judge, Family Court. It is the contention of the petitioner herein that the Savings Bank Account No. 4680 stands in the name of the Opposite Party herein and the evidence adduced by the petitioner herein shows monetary transaction with the aforementioned Savings Bank Account on 4.6.1998 and 5.6.1998. It is the contention of the petitioner herein that the Savings Bank Account No. 4680 stands in the name of the Opposite Party herein and the evidence adduced by the petitioner herein shows monetary transaction with the aforementioned Savings Bank Account on 4.6.1998 and 5.6.1998. (13) Learned Court below on consideration of the evidence adduced by the respective parties, held as follows : "In that view of the matter it is very difficult to hold from his evidence on record that the petitioner had withdrawn an amount exceeding Rs. 1 lakh from her S.B. A/C. on 4/6/1998 and 5/6/1998. That apart there was no reason for the petitioner to deposit Rs. 39,750/- and Rs. 63,978/ -to her aforesaid S.B.A/C on 2/6/1998 and 4/6/98 respectively. (14) With regard to the alleged income of the Opposite Party herein through private tuition, the learned Court below categorically held that it is hard to believe that one can earn 3,000/- per month by giving private tuition to children. It is further held by the learned Court below that petitioner herein has failed to prove the income of the Opposite Party herein. (15) In this connection the decision of Honble Supreme Court in Rajathi v. C. Ganesan reported in (1999)6 SCC 326 : 1999 C Cr LR (SC) 329, where the Honble Supreme Court took into consideration the meaning of the words unable to maintain herself, as appearing in Section 125 of the Code of Criminal Procedure. The grant of maintenance under Section 125 of the Code of Criminal Procedure is available to the wife, who is unable to maintain herself. The Honble Supreme Court in the aforesaid decision held at para 7, which is set out below: " It was a case where the husband neglected or refused to maintain his wife. The High Court did not consider the question if the husband was having sufficient means. It rather unnecessarily put the burden on the wife to prove that she was unable to maintain herself. The words "unable to maintain herself would mean the means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 is enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents. Section 125 is enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. The High Court also observed that the wife did not plead as to since when she was living separately. This is not quite a relevant consideration. Even though the wife was unable to prove that the husband had remarried, yet the fact remained that the husband was living with another woman. That would entitle the wife to live separately and would amount to neglect or refusal by the husband to maintain her. The statement of the wife that she was unable to maintain herself would be enough and it would be for the husband to prove otherwise." (16) The words unable to maintain herself would mean the means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. (17) So far as the present case is concerned, the bank transaction does not inspire confidence in the mind of the Court as rightly held by the learned Judge, Family Court that the transaction was not effected personally by the Opposite Party herein but by some other persons, who even refused to appear before the learned Judge, Family Court inspite of summons issued to that effect. (18) Learned Judge, Family Court categorically held that petitioner herein, " had to make out a story that he had no knowledge if those deposits were made by Manish Jain and Rajendra Prosad Sharma." (19) So, the evidence laid by the petitioner herein to show about the income of his wife could not be established in support of his contention that Opposite Party/Wife has sufficient means or that he has sufficient income to maintain herself. (20) It may be pointed out that learned Judge, Family Court also took into consideration that petitioner herein, who is a Chartered Accountant, maintaining office with air conditioned facilities, telephone connection etc. has stated that his monthly income is only Rs. 4,000/- to Rs. 4,500/-. Income is within the specific knowledge of the person in terms of provision under Section 106 of the Evidence Act. has stated that his monthly income is only Rs. 4,000/- to Rs. 4,500/-. Income is within the specific knowledge of the person in terms of provision under Section 106 of the Evidence Act. It is clear that petitioner herein failed to establish his income and the learned Court below found that infact the petitioner herein has sought to suppress his income in order to defeat the claim of maintenance by the Opposite Party/Wife. (21) On consideration of the entire matter, I do not find any illegality or impropriety committed by the learned Court below justifying any interference by this Court. (22) The scope of an application under Section 125 of the Code of Criminal Procedure is explained by Honble Supreme Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. Deported in AIR 1978 Supreme Court 1807, the Honble Justice V. R. Krishna Iyer (As His Lordship then was) speaking on behalf of the Bench held at para 9 of the aforesaid decision, which is set out below : " 9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art. 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the causes the cause of the derelicts." (23) The application for maintenance is required to be decided keeping in view the principle on which the provisions for maintenance to the wife, children and parents have been incorporated in the statute. The Court is required to take a broader aspect in the matter when it is shown that the wife is not maintained by the husband having sufficient means. (24) The application sub-section (4) of Section 19 of the Act is devoid of any merit and stands dismissed. (25) There shall be no order as to costs. (26) Criminal Section is directed to forward a copy to the learned Court below. (24) The application sub-section (4) of Section 19 of the Act is devoid of any merit and stands dismissed. (25) There shall be no order as to costs. (26) Criminal Section is directed to forward a copy to the learned Court below. Criminal Section is also directed to supply urgent photostat copy of the order to the parties as and when applied for.