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2012 DIGILAW 541 (CAL)

Minati Biswas v. State

2012-06-22

DIPAK SAHA RAY

body2012
Judgment :- Dipak Saha Ray, J. The present case arises out of an application under Article 227 of the Constitution of India. It is directed against the Order dated 15.2.2011 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Barrackpore, North 24 Parganas in Criminal Revision No. 120 of 2010 setting aside the order dated 3.3.2010 passed by the learned Judicial Magistrate, 5th Court, Barrackpore in Misc. Case No. 57 of 2008 under Section 127 of the Code of Criminal Procedure arose out of Misc. Case No. 350 of 2002 under Section 125 of the Code of Criminal Procedure. The relevant facts of the present case are, in a nutshell, as follows. The present petitioner herein/wife initiated a proceeding under Section 125 of the Code of Criminal Procedure against her husband/Opposite Party No. 2 herein for her maintenance. The said proceeding was registered as Misc. Case No. 350 of 2002. In the said Misc. Case, the learned Judicial Magistrate, 5th Court, Barrackpore, North 24 Parganas by his order dated 29.3.2006 allowed the prayer for maintenance of the petitioner and the husband was directed to pay Rs. 1600/- p.m. to the petitioner. Subsequently, the petitioner/wife filed an application under the provisions of Section 127 of the Code of Criminal Procedure for enhancing of the maintenance so passed by the learned Magistrate on 29.3.2006 and the said case was registered as Misc. Case No. 57 of 2008. The said case was allowed and the maintenance of Rs. 1600/- which was allowed previously on 29.3.2006 in favour of the petitioner/wife was enhanced to Rs. 5000/- p.m. Being aggrieved by the said order of the enhancement of the maintenance, the husband/opposite party No. 2 herein filed a revisional application which was registered as Criminal Revision No. 120 of 2010 and in the said case the learned Additional Session Judge, Fast Track Court No. 4, Barrackpore, North 24 Parganas modified the order dated 3.3.2010 by the order dated 15.2.2011 directing the husband/opposite party No. 2 to pay the maintenance of Rs. 3500/- p.m. to the petitioner/wife instead of Rs. 5000/- p.m. Being aggrieved by and dissatisfied with the impugned order dated 15.2.2011, the petitioner/wife has preferred the instant revisional application. 3500/- p.m. to the petitioner/wife instead of Rs. 5000/- p.m. Being aggrieved by and dissatisfied with the impugned order dated 15.2.2011, the petitioner/wife has preferred the instant revisional application. The grievances of the petitioner/wife are, in short, as follows: The learned trial court failed to appreciate the judgment of the learned Magistrate in the matter of enhancement of maintenance in its proper perspective and approached the case from a wrong angle and this has resulted in failure of justice. The learned trial court without assigning any reason whatsoever modified the order dated 15.2.2011 though the learned Magistrate in the said order stated the reasons as to why the previous maintenance order was enhanced. The learned trial court without considering the income of the husband and status of the parties reduced the amount of maintenance. After taking into consideration of all relevant facts and materials and giving due regard to the submission made by the learned counsel for the petitioner/wife, I think that the only point requiring adjudication is whether or not the impugned order dated 15.2.2011 passed by the learned trial court is liable to be set aside. In the instant case, it is to be kept in mind that the order dated 29.3.2006 passed in Misc. Case No. 350 of 2002 granting maintenance of Rs. 1600/- p.m. in favour of the petitioner/wife was not challenged by the husband/opposite party No. 2. Subsequently, the said amount of maintenance of Rs. 1600/- p.m. was enhanced by the learned Magistrate vide his order dated 3.3.2010 passed in Misc. Case No. 57 of 2008 which arose on the basis of an application under Section 127 of the Code of Criminal Procedure filed by the petitioner/wife. On careful perusal of the order dated 3.3.2010 passed by the learned Magistrate in Misc. Case No. 57 of 2008, it appears that the learned Magistrate at the time of passing the order in the matter of enhancement of the maintenance of the petitioner/wife from Rs. 1600/- p.m. to Rs. 5000/- p.m., considered the evidence and materials on record. It further appears that the income, liabilities of the opposite party/husband and also the status of the parties were also considered at the time of passing such order. At the time of granting such enhanced maintenance, the learned Magistrate has also given the reason as to why the said order of enhancement of maintenance was passed. It further appears that the income, liabilities of the opposite party/husband and also the status of the parties were also considered at the time of passing such order. At the time of granting such enhanced maintenance, the learned Magistrate has also given the reason as to why the said order of enhancement of maintenance was passed. The learned Magistrate in the impugned judgment has observed as follows: “… The evidences on record goes to show that the circumstances have changed in this case since after the passing of the order of maintenance in 2006 when OP’s gross salary was Rs. 11,000/- per month. Moreover, it cannot be denied that the present market prices of all the essential commodities have increased. On the other hand, the opposite party has not been able to show that the petitioner has any source of income. In the light of the evidence on record and keeping in mind the provision of law as contained under section 127 of the Code, I am of the view that the application under section 127 of the code is liable to be allowed. The petitioner is liable to get at least Rs. 5000/- per mensem from the opposite party in view of the changed circumstances in the income of the opposite party vis-à-vis the increasing price hike of essential commodities.” The learned trial court also at the time of passing the impugned order, has observed that “… No denial that the income of the husband has been increased nearing three times and price of the commodities has soared high up, still the enhancement allowed by Ld. Court appears to be disproportionate. Having considered all aspects, I am of the view that had it been Rs. 3500/- p.m., it would have been justified and proportionate.” So, it is not clear from such observation which aspect was considered for modifying the said order of enhancement of the maintenance amount passed by the learned Magistrate. In fact, no reason whatsoever has also been assigned in passing the impugned order reducing the amount from Rs. 5000/- to Rs. 3500/-. Considering the above facts and circumstances and in view of the discussion made earlier, it appears that the learned trial court was not justified to modify the order of enhancement dated 3.3.2010 passed by the learned Magistrate by allowing the Criminal Revision No. 120 of 2010. 5000/- to Rs. 3500/-. Considering the above facts and circumstances and in view of the discussion made earlier, it appears that the learned trial court was not justified to modify the order of enhancement dated 3.3.2010 passed by the learned Magistrate by allowing the Criminal Revision No. 120 of 2010. Considering all such facts and circumstances, I am of the opinion that the said order dated 15.2.2011 suffers from inherent illegality and impropriety and thus, justifies interference by this court. Accordingly, the instant revisional application succeeds. CRR No. 1174 of 2011 be allowed and in the nature and background of the case without cost. The impugned order dated 15.2.2011 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Barrackpore, North 24 Parganas in Criminal Revision No. 120 of 2011 be set aside. Let a copy of this judgment be sent to the learned trial court for information and necessary action.