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2012 DIGILAW 716 (CAL)

Mostafa Kamal v. Asma Khatun

2012-08-02

DIPAK SAHA RAY

body2012
JUDGMENT: DIPAK SAHA RAY, J. 1. THE present case arises out of an application under Section 482 of the Code of Criminal Procedure, 1973. 2. IT is directed against the order dt. 21.9.2010 passed by the Ld. Additional Sessions Judge, Basirhat, North 24 Parganas in Criminal Motion No. 23 of 2009 affirming the order dt. 1.6.2009 passed by the Ld. 1st Additional Judicial Magistrate, Basirhat, North 24 Parganas in M-167 of 2008 whereby Ld. Magistrate allowed ad interim maintenance of Rs. 300/- per month in favour of the wife/opposite party herein. 3. THE relevant facts of the present case are, in a nutshell, as follows: The wife/opposite party herein as petitioner filed an application under Section 125 of the Code of Criminal Procedure against her husband/petitioner herein for maintenance. In the said application for maintenance it has been alleged inter alia that she was the legally married wife of the Opposite Party (petitioner herein) and their marriage was registered on 26.6.2004. Subsequently, on 27.6.2007 her in- laws drove her out from her matrimonial home and accordingly she was forced to live at her father's house. It is also alleged that her husband in spite of sufficient means, refused and/or neglected to maintain her. Accordingly, the said case was filed along with a prayer for ad interim maintenance which was registed as M- 167 of 2008. 4. NOW from the instant application under Section 482 of Codec of Criminal Procedure it appears that after hearing both sides, the Ld. Magistrate allowed ad interim maintenance of Rs. 300/- per month in favour of the wife/opposite party herein. 5. BEING aggrieved by the said order of granting ad interim maintenance, the husband/opposite party of the said case filed a revisional application. The Ld. Additional District and Sessions Judge, Basirhat, North 24 Parganas after hearing bothsides rejected the said revisional application and affirmed the order of the Ld. Magistrate in the matter of granting ad interim maintenance allowance in favour of the wife. 6. IT is the case of the petitioner herein that the opposite party is not his legally married wife. According to him a paper which he signed for obtaining loan for his business, was subsequently used for registration of their marriage and on the basis of the said registration, the opposite party herein claimed herself as the wife of the petitioner. IT is the case of the petitioner herein that the opposite party is not his legally married wife. According to him a paper which he signed for obtaining loan for his business, was subsequently used for registration of their marriage and on the basis of the said registration, the opposite party herein claimed herself as the wife of the petitioner. It further appears form ground No. 3 of the instant application that the present petitioner in his written objection contended that the wife/opposite party herein obtained "talak" from him. So it appears that the petitioner herein disclosing two facts in the same breath. At first he denied the marriage and thereafter he stated that opposite party herein obtained talak from him. So, if there was no marriage between the parties, how the question of talak arose ?. 7. FROM the above facts and circumstances it prima facie appears that there was marriage between the petitioner herein and the opposite party. From the impugned order dt. 21.9.2010, it further appears that at the time of hearing of the said case under Section 125 of the Code of Criminal Procedure nothing was submitted on behalf of the petitioner to establish that the opposite party herein after talak married for the second time. There is also nothing on record to show that the opposite party herein is getting maintenance from the petitioner herein or that the opposite party herein has independent source of Income and she is able to maintain herself. 8. IT is well known that the object of the provision of 125 of the Codec of Criminal Procedure is to prevent vagrancy and destitution; the Magistrate is 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 parties. 9. FROM the above principle of law it appears that the Ld. Magistrate was justified in realizing that the petitioner of the said Misc. case was in need on immediate relief for her support. 10. FROM the above facts and circumstances and since the cost of living of a person has increased at such a rate on account of high market price of essential commodities, I feel that the ad interim maintenance as granted by the Ld. case was in need on immediate relief for her support. 10. FROM the above facts and circumstances and since the cost of living of a person has increased at such a rate on account of high market price of essential commodities, I feel that the ad interim maintenance as granted by the Ld. Trial Court is not at all exorbitant and the said amount is very much required by the opposite party herein to maintain a moderate living which is neither luxurious nor penurious, but is modestly consistent with the status of the parties. 11. NOW on careful perusal of the Judgment passed by the learned revisional Court it appears that the learned revisional Court at the time of considering the application under Section 397/399 of the Code of Criminal Procedure considered the impugned order of the learned Magistrate dated 1.6.2009 and also other materials on record and thereafter dismissed the revisional application and affirmed the order of the learned Magistrate. So, it appears that there was no illegality or impropriety or any material irregularity either in the order dated 1.6.2009 passed by the learned 1st Additional Judicial Magistrate, Basirhat, North 24 Parganas or in the judgment of the learned revisional Court dated 21.09.2010. So it cannot be said that there was any miscarriage of justice either by the order of the learned Magistrate or by the Judgment of the learned revisional Court. 12. ACCORDINGLY I find no merit in the present application which must be dismissed. So the instant application fails. CRR No. 72 of 2011 is dismissed and in the nature of background of the case without cost. 13. THE Impugned order dt. 21.9.2010 passed by the Ld. Additional District and Sessions Judge, Basirhat, North 24 Parganas in Criminal Motion No. 23 of 2009 is hereby affirmed. 14. HOWEVER, the learned Magistrate shall dispose of the application under Section 125 of the Code of Criminal Procedure independently at an early date preferably within two months without being influenced in any way by the observation made by this Court. Let a copy of this judgment be sent to the learned trial Court for information and necessary action. 15. URGENT Photostat certified copy of this judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.