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2011 DIGILAW 820 (CAL)

Khokan Chandra Dey v. The State of West Bengal

2011-06-22

KALIDAS MUKHERJEE

body2011
Judgment : KALIDAS MUKHERJEE, J. 1. These are the two revisional applications arising out of the same proceeding granting maintenance at the rate of Rs.3000/- per month for the petitioner and Rs.2000/-per month for her minor daughter under Section 125 bearing Misc. Case No. 61/2005. 2. The petitioner/husband has filed the application bearing CRR 686/11 praying for setting aside the order of grating maintenance at the aforesaid rate passed by Learned Additional Chief Judicial Magistrate, Uluberia, Howrah in Misc. Case No. 61/2005 which was affirmed by the Learned Additional Sessions Judge, 5th Court, Howrah in Criminal Motion No. 216 of 2009. 3. The Opposite Party No.1 herein / wife instituted the proceeding under Section 125 of the Code of Criminal Procedure alleging that the petitioner/husband herein subjected her to physical and mental torture and refused to maintain her and her child. 4. The Learned Magistrate upon consideration of the evidence on record was pleased to grant maintenance at the aforesaid rate which was subsequently affirmed by the Learned Additional Sessions Judge. 5. The learned counsel appearing for the petitioner herein submits that the petitioner herein was all along willing to take back the O.P. and in fact he went to take her back. It is contended that the Opposite Party No.1 herein refused to come back to the matrimonial home. 6. The learned counsel appearing for the petitioner has referred to the evidence of the PWs and the OPWs. 7. The Learned Counsel appearing for the OP / Wife submits that because of the torture committed upon the OP herein she was compelled to leave the matrimonial home. It is submitted that the husband / petitioner herein filed the Matrimonial Suit under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights after the filing of the case under Section 125 Cr. P.C. It is further contended that the conduct of the husband was such that the OP/Wife was compelled to leave the Matrimonial home. In this connection the learned counsel for the O.P./wife has referred to and cited the decisions reported in (2011)1 C Cr LR (Cal) 395 [Smt. Rina Khatik vs. Sri Rajesh Khatik] : 2001 C Cr LR (Cal) 387 [Smt. Atashi Sen vs. Sri Jayanta Sen & Anr.] 8. Learned Counsel appearing for the petitioner / husband submits that the story of torture has not been corroborated by other PWs. 9. Learned Counsel appearing for the petitioner / husband submits that the story of torture has not been corroborated by other PWs. 9. PW I has stated in her cross - examination that the OP came to her father’s house when her daughter was aged about 1 ½ months. But she has categorically stated that she left the house of her husband due to the torture committed upon her. 10. PW 2 has stated that the petitioner is residing in her father’s house as the OP drove her out from his house. He has further stated that the OP is a Government employee earning Rs.15,000/- - Rs.20,000/- per month; the petitioner has no means to maintain herself. He has denied the suggestion that the petitioner earns Rs.6000/- - Rs.7000/-per month as a private tutor. 11. PW I has stated that she has no income and, as such, she prayed for Rs.3000/- for herself and Rs.2000/- per month for her daughter. She has denied the suggestion that her brothers and mother created pressure upon OP / husband to reside in their house as "Ghar Jamai”. She has further stated that OP filed a Mat. Suit before the learned District Judge for restitution of conjugal rights. 12. OPW I / husband has stated that he is an employee of Alipore Mint and gets the salary of Rs.15,200/- per month. 13. The Learned Counsel for the petitioner submits that the Learned Magistrate granted maintenance from the date of filing of the application under Section 125 Cr. P.C. without assigning any reason. 14. It is clear that the Learned Magistrate has the jurisdiction under the law to grant maintenance w.e.f. the date of filing of the case. In the instant case the Learned Magistrate has taken into consideration that the OP / husband did not pay any maintenance during the pendency of the case. 15. Having heard the learned counsel appearing for the parties and on perusal of the evidence on record I find that there is no ground to interfere with the findings of the learned Court below in granting maintenance at the aforesaid rate. 16. The revisional application bearing No. CRR No. 686/ 11 is, therefore, dismissed. 17. 15. Having heard the learned counsel appearing for the parties and on perusal of the evidence on record I find that there is no ground to interfere with the findings of the learned Court below in granting maintenance at the aforesaid rate. 16. The revisional application bearing No. CRR No. 686/ 11 is, therefore, dismissed. 17. Another revisional application bearing No. 767/11 has been filed by the petitioner/ husband assailing the order dated 01.03.2011 whereby and whereunder the learned Magistrate issued warrant of arrest against the petitioner herein in connection with the Misc. Execution Case 109/09 for realisation of the arrears of maintenance. In paragraph 11 of the application it has been stated that the petitioner appeared in the Misc. Execution Case on 29.09.2010 and filed a petition alongwith money order receipt showing payment of Rs.40,000/- by the petitioner to the OP No. 2 and the Learned Magistrate was pleased to pass an order directing the same to be kept with the record and fixed another date for payment of Rs.7000/-. On the subsequent dates the petitioner remained present but the OP 2 was absent. It has been stated in Paragraph 12 of the application that on 01.03.2010 the petitioner was present and expressed his desire to pay Rs.7000/- to the OP No. 2, but when OP 2 refused to accept the same, the learned Magistrate was pleased to issue warrant of arrest against the petitioner. It has been stated in Paragraph 13 of the application that the petitioner has been regularly paying maintenance to the OP 2 and lastly paid Rs.7,000/-by way of money order dated 03.03.2010 and, as such, there was no cause or necessity for the learned Magistrate to issue warrant of arrest against the petitioner herein. 18. The learned counsel appearing for the petitioner has referred to the xerox copy of the endorsement made on the money order form wherefrom it appears that the payee left the place and, as such, the money order was returned to the sender. It appears that the money order was sent in connection with the Misc. Execution Case No. 109/09 for the month of February 2011. 19. The Learned Counsel appearing for the OP/Wife submits that the amount of arrear maintenance will be about Rs.3,00,000/- 20. It appears that the money order was sent in connection with the Misc. Execution Case No. 109/09 for the month of February 2011. 19. The Learned Counsel appearing for the OP/Wife submits that the amount of arrear maintenance will be about Rs.3,00,000/- 20. From the order dated 01.03.2011 it appears that both sides remained present and the OP/husband wanted to pay a sum of Rs.7,000/-to the petitioner/wife, but, she refused to receive the said amount. The learned Magistrate thereafter issued a warrant of arrest fixing a date for ER W/A. 21. It is evident that while issuing warrant of arrest the learned Magistrate did not assign any reason as to why the warrant of arrest was issued in spite of fact that the OP was ready to pay the sum of Rs.7,000/-. In absence of any reason for issuing warrant of arrest, I find that the said order passed by the learned magistrate is not sustainable. The said order dated 01.03.2011 passed by the learned Magistrate is, therefore, set aside. The revisional application bearing No. 767/11 is, therefore, allowed. 22. It is directed that the learned magistrate will hear the parties and pass necessary orders according to law in connection with the Misc. Execution Case No. 109/09. Both the revisional applications bearing No. CRR 767/11 & CRR 686/11 are thus disposed of accordingly. 23. Let a copy of this order be sent to the Learned Magistrate immediately. 24. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.