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2012 DIGILAW 543 (CAL)

Kalpana Singha v. Sunil Kumar Singha

2012-06-22

DIPAK SAHA RAY

body2012
Judgment :- Dipak Saha Ray, J. The present case arises out of an application under Section 397/401 of the Code of Criminal Procedure. It is directed against the Order dated 18.12.2010 passed by the learned Judicial Magistrate, Kalyani, Nadia in Misc. Case No. 81 of 2007 under Section 125 of the Code of Criminal Procedure. The relevant facts of the present case are, in a nutshell, as follows: The petitioner herein/wife initiated a proceeding under Section 125 of the Code of Criminal Procedure against her husband/Opposite Party herein for maintenance of Rs. 10,000/- p.m. for herself. The said case was registered as Misc. Case No. 81 of 2007. In the said Misc. Case, the petitioner alleged inter alia that she was the legally married wife of the opposite party and in their wedlock two children were born. In the said application for maintenance, it was stated that her husband was a Military Personnel and used to stay at his place of posting and for the said reason she used to reside at her matrimonial home. During her such stay at her matrimonial home, her brother-in-law and sister-in-law used to inflict torture on her both mentally and physically. Whenever she informed the said matter to her husband, her husband without making any attempt to solve the matter, rebuked her for making such complaint. In the month of July, 2006, her husband/opposite party after keeping his son at his house brought the petitioner and her daughter to her place of posting i.e., at Nasik and after superannuation on 1.2.2007, the husband/opposite party came to his residence on 13.2.2007. On that very day, the husband/opposite party and his brother and sister-in-law after assaulting the petitioner physically, drove the petitioner out from her matrimonial home. It was also alleged that the husband/opposite party was getting Rs. 4,000/-/Rs. 5,000/-p.m. as pension and he also used to receive interest for Rs. 8 lakh/ 9 lakh which he received as retirement benefits. In addition to that, the husband/opposite party had some income from his landed property. But the husband/opposite party inspite of his sufficient income neglected and/or refused to maintain the petitioner who had no independent source of income and was unable to maintain herself. As against this, the husband/opposite party contested the said Misc. Case by filing written objection. The opposite party in his written objection denied the material allegation made by the petitioner/wife. But the husband/opposite party inspite of his sufficient income neglected and/or refused to maintain the petitioner who had no independent source of income and was unable to maintain herself. As against this, the husband/opposite party contested the said Misc. Case by filing written objection. The opposite party in his written objection denied the material allegation made by the petitioner/wife. It was the specific case of the husband that the petitioner/wife used to live in adultery when he (the opposite party) stayed at his place of posting and ultimately, on 22.5.2005, the petitioner after leaving her son and daughter, left her matrimonial home with her paramour namely Tushar Ghosh and started living with him (Tushar Ghosh) as husband and wife. It was also the case of the husband/opposite party that he also informed the said matter to the Police by lodging General Diary with Naihati P.S. Accordingly, dismissal of the application for maintenance had been so prayed for. After taking into consideration all the materials on record, the learned trial court passed an order on 18.12.2010 rejecting the application for maintenance filed by the petitioner/wife under Section 125 of the Code of Criminal Procedure. Being aggrieved by and dissatisfied with the impugned order the petitioner/wife has preferred this instant revisional application. The grievances of the petitioner/wife are, in short, as follows: The learned trial court has failed to appreciate the materials on record in its proper perspective and approached the case from a wrong angle and this has resulted in failure of justice. The learned Magistrate without considering the entire evidence on record has come to the conclusion that the petitioner left her matrimonial home without any reasonable cause. 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 18.12.2010 passed by the learned trial court is liable to be set aside. There is no controversy that the petitioner/wife herein is the legally married wife of the opposite party No. 1. There is also no controversy that in their said wedlock two children were born who are now major. There does not appear to be any controversy that the petitioner/wife is not residing with her husband/opposite party. There is no controversy that the petitioner/wife herein is the legally married wife of the opposite party No. 1. There is also no controversy that in their said wedlock two children were born who are now major. There does not appear to be any controversy that the petitioner/wife is not residing with her husband/opposite party. There is also no dispute that the daughter of petitioner No. 1 is living with opposite party No. 1 herein and the son of the petitioner is living with the brother of opposite party No. 1. The controversy mainly relates to the question as to whether the petitioner/wife left her matrimonial home at her sweet will and whether she has been living with her paramour. At the time of deciding the application under Section 125 of the Code of Criminal Procedure the learned Magistrate has held that the petitioner left her matrimonial home at her sweet will and since then she has been living in adultery. In the instant case the learned Magistrate only after relying upon the evidence of OPW No. 2 (the daughter of the petitioner) has come to a decision that the petitioner left her matrimonial home without any sufficient reason. So, we shall analyse and evaluate the testimony of this witness with reference to the evidence of other witnesses of this case to ascertain as to how far her evidence is acceptable in deciding the instant case. This witness (OPW No. 2) in her evidence has stated that her mother left her father’s house with one Tushar Ghosh and since then she has started living with that person as husband and wife. But in this case, we have to keep in mind that this witness is living with her father who is the opposite party of this case. Now, on careful perusal of PW 3 i.e., the son of the petitioner, it appears that this witness has denied all the allegations of his father that the petitioner left her matrimonial home on her own accord with one Tushar Ghosh and started living in adultery with that person. In this case, the brother of the petitioner/wife has also been examined as PW 2. This witness has specifically stated that the petitioner was driven out from her matrimonial home on 13.2.2007 and since then she has been living at his house. This evidence has corroborated the case of the petitioner. In this case, the brother of the petitioner/wife has also been examined as PW 2. This witness has specifically stated that the petitioner was driven out from her matrimonial home on 13.2.2007 and since then she has been living at his house. This evidence has corroborated the case of the petitioner. The evidence of PW 2 also goes to show that before 13.2.2007, and O.P. herein brought the petitioner and their daughter (OPW No. 2) to his place of posting i.e., at Nasik and after retirement on 1.2.2007, he came to his native place on 13.2.2007 alongwith his wife and daughter. From the said evidence, it further appears that a ticket in support of the said contention was also filed by the said witness. The above evidence of PW 2 demolishes the evidence of OPW No. 2 that she and her mother i.e., the petitioner herein never went to Nasik i.e., the place of posting of her father. Considering both the evidence of O.P.W. 2 and PW 3, with reference to the evidence of PW 2 it appears that the learned Magistrate is not justified to accept the testimony of O.P.W. 2 after disbelieving the oral evidence of PWs 2 and 3. Here, in this case, it is alleged that the petitioner after leaving her son and daughter left her matrimonial home at her sweet will, but there is nothing on record to show that the husband/opposite party No. 1 ever attempted to bring her (wife) back to his house. On the other hand, it is the case of the petitioner that she was driven out by her husband and her inmates from her matrimonial home. In the instant case, the petitioner/wife has alleged that she was ill-treated by her In-laws and ultimately, her husband and In-laws after assaulting her drove her out from her matrimonial home. It is also the case of the petitioner/wife that her husband married one Rakhi for the second time and he started living with her. The said matter has been corroborated by the oral evidence of PWs 2 and 3. In this case, it is to be kept in mind that PW 3 who is the son of the petitioner/wife is living with the elder brother of the opposite party and not with the petitioner. The said matter has been corroborated by the oral evidence of PWs 2 and 3. In this case, it is to be kept in mind that PW 3 who is the son of the petitioner/wife is living with the elder brother of the opposite party and not with the petitioner. So, the allegations of the petitioner that she was being tortured by her husband/opposite party and others both mentally and physically and for this reason she was compelled to live in the house of his brother just cannot be brushed aside under the carpet. It is well settled that torture or ill-treatment, cruelty and/or inhuman behaviour to wife by the husband have been held to be sufficient reason for refusing to live with the husband. From the above facts and circumstances, it appears that the petitioner/wife has sufficient reason for refusing to live with her husband/opposite party No. 1. In this context, it is desirable to mention a decision reported in 1995 SCC (Cri) 836 [Mannava Satyawati & Ors. Vs. Mannava Malleswara Rao & Ors.] wherein the Hon’ble Supreme Court has held that “… we are of the view that the District Judge and the High Court fell into patent error in reaching the finding that since the wife and the children let the house on their own they were not entitled to the maintenance. In the facts and circumstances of this case the respondent was bound to maintain his wife and children. …” Considering the above facts and circumstances, it appears that the learned trial court was not justified in rejecting the prayer of the wife for maintenance on the ground that the petitioner/wife is living separately without any sufficient reason. It is well settled that unless the husband can show that the wife has some income, the wife’s version about her nil income is to be accepted. It is the case of the petitioner that she has got no independent source of income and is unable to maintain herself. On the other hand, her husband/opposite party No.1 having sufficient means refused and/or neglected to maintain her. From the materials on record, it is evident that the husband/opposite party No. 1 is a retired Army Personnel and is getting pension. On the other hand, her husband/opposite party No.1 having sufficient means refused and/or neglected to maintain her. From the materials on record, it is evident that the husband/opposite party No. 1 is a retired Army Personnel and is getting pension. There is nothing on record to show that the husband/opposite party is paying any maintenance to his wife or he offered any lump sum amount of money at any point of time to her as her maintenance. There is also nothing on record that the husband/opposite party has ever alleged that his wife/petitioner has any income. It is well known that the object of the provisions of Section 125 of the Code of Criminal Procedure is to prevent vagrancy and destitution, the learned trial court is required to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family. Admittedly, the opposite party/husband is a retired Army Personnel and is getting pension. It is the case of the petitioner that the opposite party is getting pension of Rs. 5000/- to Rs. 6000/- p.m. But the opposite party has stated that he is getting Rs. 2743/-p.m. But inspite of having the opportunity, he has not filed any piece of paper in support of his contention regarding the amount of his pension. Non production of such document creates an adverse presumption in this regard. More over, after 2006, the salary of the employees of all the Govt. Establishments including the defence personnel has been increased a lot. From the discussion made above and also considering income of the husband/opposite party No. 1, status of the parties and considering also the high market price of essential commodities which is increasing day by day due to fall of the value of the money, it appears that the petitioner/wife is entitled to get maintenance of Rs. 1200/- p.m. Considering the facts and circumstances of the case and in view of the discussion made above, it appears that the learned trial court is not justified in rejecting the application of the petitioner for maintenance as the said order dated 18.12.2010 passed in Misc. Case No. 81 of 2007 under Section 125 of the Code of Criminal Procedure suffers from inherent illegality and impropriety and thus justifies interference by this court. Case No. 81 of 2007 under Section 125 of the Code of Criminal Procedure suffers from inherent illegality and impropriety and thus justifies interference by this court. Accordingly, the instant revisional application succeeds. CRR No. 889 of 2011 be allowed and in the nature and background of the case without cost. The impugned order dated 18.12.2010 passed by the learned Judicial Magistrate, Kalyani, Nadia in Misc. Case No. 81 of 2007 under Section 125 of the Code of Criminal Procedure be set aside. The opposite party No. 1/husband is directed to pay maintenance of Rs. 1200/-p.m. to his wife/the petitioner herein, from June, 2012. The opposite party No. 1 is also directed to pay the maintenance for the month of June, 2012 by 15th July, 2012 and thereafter he shall go on paying the same month by month by 15th of the succeeding months. Let a copy of this judgment be sent to the learned trial court for information and necessary action.