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2011 DIGILAW 883 (GAU)

Jitendra Pal v. Rita De

2011-11-08

S.C.DAS

body2011
JUDGMENT Hon'ble Mr. Justice S C Das 1. This revision petition under Section 397, read with Section 401 of Cr.P.C, is directed against the judgment & order, dated 12.11.2009, passed by learned SDJM, Dharmanagar, in connection with Misc Case No.11/2009, registered under Section 125 of Cr.P.C. 2. By the impugned judgment & order, the learned SDJM, Dharmanagar, directed the petitioner-husband to pay an amount of Rs.1200/- (Rupees one thousand & two hundred) per month towards maintenance to the respondent-wife. Being aggrieved and dissatisfied with the judgment & order, aforesaid petitioner (husband), has filed the present revision petition, challenging the correctness, legality and propriety of the judgment & order on different grounds. 3. I have heard Mr. A C Bhowmik, learned Senior counsel, assisted by Mr. D C Roy, learned counsel, appearing for the petitioner-husband as well as Mr. B Banerjee, learned counsel, appearing for the respondent-wife. 4. Learned Senior Advocate, has submitted that the respondent-wife withdrawn herself voluntarily from the society of the petitioner-husband and the marriage was not at all consummated. Though the marriage was solemnized as per Hindu customary rites and ceremonies but the respondent-wife never lived and cohabited with the petitioner and that, from the very beginning she was living separately and ultimately, she volunteered to live in her parental home and for the last 11 years she has/had been continuously living with her brother in her parental home and well maintained by her brother. He further submitted that the respondent had no valid reason to refuse to live with her husband i.e. the petitioner herein and, therefore, she has no right to claim the maintenance. It is also argued that the petitioner has no source of income at all and that, there is no evidence regarding income of the petitioner. Under such circumstances, the order passed by the learned SDJM, Dharmanagar, directing the petitioner to pay maintenance to the respondent, is illegal and perverse and therefore, liable to be set aside and quashed. 5. On the other hand, Mr. Banerjee, learned counsel for the respondent-wife has submitted that the petitioner-husband all along treated the respondent-wife with cruelty in the matrimonial home and beaten out her from the respondent's house and thereby compelled her to take shelter in the house of her brother. Having no other alternative, she is now in the mercy of her brother. Banerjee, learned counsel for the respondent-wife has submitted that the petitioner-husband all along treated the respondent-wife with cruelty in the matrimonial home and beaten out her from the respondent's house and thereby compelled her to take shelter in the house of her brother. Having no other alternative, she is now in the mercy of her brother. She has no independent income and being married women, her brother has no legal obligation to maintain her. The petitioner being legally married husband is bound to maintain his wife, i.e. the respondent and during last many years, the petitioner did not pay a single farthing to the respondent. Since long, the respondent-wife could somehow maintain herself but now, she became helpless and therefore, prayed for granting maintenance and accordingly, her prayer was allowed. The amount of maintenance, so awarded by the learned SDJM, Dharmanager, does not deserve interference by this Court, as the amount is very small. After the order, so passed by the learned SDJM, till today, petitioner did not pay a single penny to the respondent and, therefore, the instant revision petition should be dismissed. 6. I have meticulously gone through the impugned judgment & order, passed by the learned SDJM, Dharmanagar and the materials available on record. 7. A revisional Court is not required to re-appreciate the evidence on record, unless it is shown that findings of the Court below is perverse and that there is no supporting legal evidence on record to support the judgment/order. The Court also is not required to re-appreciate the evidence on record, on the points already decided by the trial Court, unless the order suffers from illegality, impropriety or incorrectness. Learned SDJM, has got jurisdiction to entertain a petition, registered under Section 125 of Cr.P.C., to adjudicate on it and pass appropriate order. There is no illegality found in the proceedings or in the order, passed by the learned SDJM, Dharmanager. There is also nothing to show that the order, passed by the learned SDJM, Dharmanager, suffers from impropriety or that, there was any irregularity in the proceeding. 8. It is an admitted fact that a Hindu marriage, between the petitioner and the respondent, was solemnized, on 09.10.1998. The allegation of the respondent-wife, is that she was subjected to torture and that she was beaten out from the matrimonial home of the petitioner-husband. 8. It is an admitted fact that a Hindu marriage, between the petitioner and the respondent, was solemnized, on 09.10.1998. The allegation of the respondent-wife, is that she was subjected to torture and that she was beaten out from the matrimonial home of the petitioner-husband. The contention of the petitioner is that since after the marriage, he could not leave with the respondent-wife, as there was misunderstanding between them and therefore, the marriage was not consummated. In the evidence on record, I find that there were some village meetings held at the intervention of the well-wishers of the parties but the dispute and difference between the parties could not be mitigated. It is also on record that the respondent-wife has/had been living in her parental home with her brother and that there is no independent income to maintain herself. Even if the respondent-wife is well maintained by her brother in the matrimonial home, it cannot be said that she is not entitled to claim maintenance from her legally married husband. Once a marriage is solemnized between two Hindus, it is the obligation of the husband to maintain the wife and not her brother or father so long the marital tie subsists. It is the duty of the petitioner-husband to maintain his wife and it is on record that during last about 11 years, the petitioner-husband did not maintain the respondent-wife. 9. Regarding income of the petitioner, as I find, evidence adduced on record is that, he has a workshop and other landed property. OPW.2 has also stated that he used to work earlier in a workshop and that he has some landed property. It is settled law that an able bodied man has the responsibility to maintain his wife. So the petitioner, while maintaining himself, earning from his factory, as stated by the petitioner himself or otherwise, is bound to maintain the wife-respondent for her survival. The amount of maintenance, awarded by the learned SDJM, Dharmanager, is so small that it does not deserve any interference by this revisional Court. 10. Regarding withdrawal from the association of the husband, as I find, the husband also has admitted that there was some misunderstanding between them, as a result of which, the respondent-wife from the very beginning was living apart from the petitioner-husband. The petitioner stated nothing as to what was the fact on which misunderstanding developed. 10. Regarding withdrawal from the association of the husband, as I find, the husband also has admitted that there was some misunderstanding between them, as a result of which, the respondent-wife from the very beginning was living apart from the petitioner-husband. The petitioner stated nothing as to what was the fact on which misunderstanding developed. Under such circumstances, allegation of the respondent-wife gained strength and therefore, her case for her living apart from her husband strengthened, and therefore, this argument also cannot legally stand and hence rejected. 11. In view of the facts and circumstances and the legal position, explained above, this revision petition stands dismissed. 12. The petitioner-husband is directed to make payment of the maintenance, as per order of the learned SDJM, Dharmanagar, North Tripura, henceforth. 13. Return the L.C. records along with a copy of this judgment.