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2010 DIGILAW 1366 (CAL)

Rina Khatik v. Rajesh Khatik

2010-11-26

ASIM KUMAR RAY

body2010
JUDGMENT 1. MR. Satpathi appears on behalf of the petitioner. In spite of service, none appears to represent the opposite party/Rajesh Khatik. 2. THIS revisional application is directed against an order and judgment dated 29th October, 2009, passed in Case No, M-77 of 2007 under Section 125, Code of Criminal Procedure, wherein the prayer for maintenance of minor son was allowed but the prayer in respect of the petitioner, Rina Khatik, has been refused. Factual background in brief is that, the petitioner, Rina Khatik, got married with the opposite party, Rajesh Khatik, according to Hindu rites and customs on the 27th of January 2004 at Bowbazar, R.K. Deo Path, No. 1, Kinison Jute Mill, Line Quarter No. 13, P.S. Titagarh, District 24 Parganas (North). After marriage the petitioner and the opposite party lived together as husband and wife and as a result of their marriage the petitioner, Rina Khatik, gave birth to a male child. However, by the passage of time, the relation between the parties turned bitter. It is also alleged that the opposite party/husband used to demand money at the instance of the petitioner from her parents. It is further alleged that the petitioner was subjected to torture by the opposite party/husband and other members of his family. Petitioner, having no option, started living in her parental home along with her minor son. The opposite party/husband in spite of having sufficient means refused and neglected her to maintain. Therefore, she filed a petition, under 'Section 125 of the Code of Criminal Procedure, before the learned Sub Divisional Judicial Magistrate, Barrackpore. It was subsequently transferred to the learned Judicial Magistrate, 5th Court, Barrackpore, North 24 Parganas for disposal. The learned Magistrate passed the impugned order refusing maintenance of the petitioner, Rina Khatik. The petitioner, challenging the impugned order, has preferred this revisional application. 3. LEARNED Counsel for the petitioner contended that the opposite party/husband tortured the petitioner and neglected her to maintain. But the learned Court below has refused the prayer for maintenance of the petitioner though the prayer for maintenance in respect of the minor child has been allowed. It is the contention that the impugned order is illegal and is liable to be set aside. But the learned Court below has refused the prayer for maintenance of the petitioner though the prayer for maintenance in respect of the minor child has been allowed. It is the contention that the impugned order is illegal and is liable to be set aside. To give stand to his argument, learned Counsel for the petitioner has relied on a decision reported 2001 C CrLR (Cal) 387 (Smt. Atashi Sen v. Sri Jayanta Sen and Anr.) and invites attention of the Court, especially to paragraphs 5 and 9 of the decision. He has further contended that the learned Magistrate has exceeded his jurisdiction in examining whether the conduct of the wife was just or not and the learned Magistrate ought to have concentrated on the facts and circumstances existing on the date of passing the order on the application filed under Section 125 of the Code of Criminal Procedure. 4. I have minutely perused the records and the evidence of the petitioner, Rina Khatik. It transpires therefrom that the factum of marriage is admitted. Paternity of the child has also not been disputed. The petitioner has stated in her evidence about her case in details. She has specifically stated that she was tortured at her matrimonial home by her husband and other members of the family. She also stated that her husband drove her out from her matrimonial home and the same has been corroborated by her witness No. 2. Learned Magistrate has banked upon a one line cross examination wherefrom it appears that the petitioner has stated before the Court below that her mother came and took her from the matrimonial home to her father's place. The evidence as a whole is to be scanned and discussed but instead of doing the same, learned Magistrate has singled out a sentence from the evidence of the petitioner and has passed the impugned order refusing prayer for her maintenance. I must say that the learned Court below failed to appreciate of the evidence on record in its right perspective. The decision reported 2001 C Cr LR (Cal) 387 (supra), reflects that the Hon'ble Apex Court held that where the wife has reasonable apprehension arising out of the conduct of the husband that she is likely to be physically harmed, such apprehension would be reasonable justification for wife's refusal to live with her husband. The decision reported 2001 C Cr LR (Cal) 387 (supra), reflects that the Hon'ble Apex Court held that where the wife has reasonable apprehension arising out of the conduct of the husband that she is likely to be physically harmed, such apprehension would be reasonable justification for wife's refusal to live with her husband. In the instant case specific allegation has been levelled against the husband that he and his family members used to torture the petitioner and the same has been corroborated by her other witnesses as well. In the body of the decision reported 2001 CCrLR (Cal) 387, a decision of the Hon'ble Bombay High Court reported in 1991 CrLJ 1932 (Mustaf Shamsuddin Shaikh v. Shamshad Begum) has been referred to. In the said judgment it was held by the Division Bench of the Bombay High Court that in a proceeding under Section 125 of the Code of Criminal Procedure, it is not necessary for Court to ascertain as to who was in the wrong and whether the wife was guilty of leaving the matrimonial house without any reason. The Division Bench further held that a right to claim maintenance under the Code is not dependant upon who was right and who was wrong in the matrimonial disputes. The Magistrate is duty bound to award maintenance once it is found that the wife is unable to maintain herself and the husband having sufficient. means neglect or refuses to maintain the wife. It is an admitted fact that the husband runs a fish shop and he has sufficient income. After going through the impugned order as also the evidence on record, I am of the view that the learned Magistrate went wrong in refusing to grant maintenance to the petitioner/wife especially when the factum of marriage and that the petitioner/wife had no personal income to maintain herself are admitted. It is also not disputed that the petitioner is living separately and not with her husband. Opposite party/husband, being a man of good health/able bodied person, having sufficient income has moral obligation to maintain his wife. Assuming that the opposite party/ husband had offered the petitioner/wife to live with him and such offer was refused by the wife even then refusal by the wife cannot deprive her from getting maintenance. Opposite party/husband, being a man of good health/able bodied person, having sufficient income has moral obligation to maintain his wife. Assuming that the opposite party/ husband had offered the petitioner/wife to live with him and such offer was refused by the wife even then refusal by the wife cannot deprive her from getting maintenance. The husband cannot escape from his liability to maintain his wife simply because he offered the wife to live with him and she had turned down such offer. 5. I am of the considered view that the wife, having no income of her own, is entitled to get maintenance from her husband. I find substance in the revisional application and the submission of the learned Counsel for the petitioner. 6. THE revisional application, accordingly, stands allowed. The impugned order and judgment dated 29th October, 2009, passed in Case No. M-77 of 2007 under Section 125, Code of Criminal Procedure, refusing maintenance to the wife do hereby set aside. 7. ACCORDINGLY, after taking the facts and circumstances of the case and regard being had to the independent income of the husband, I direct that the opposite party/husband/Rajesh Khatik shall pay and go on paying an amount of Rs. 1,000/- (Rupees one thousand) only month by month, by 10th of the each succeeding month, to the petitioner/wife towards her maintenance from the date of this order.