Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 718 (CAL)

Ghochu Rajak v. STATE OF WEST BENGAL

2012-08-02

DIPAK SAHA RAY

body2012
JUDGMENT Dipak Saha Ray, J. 1. The present case arises out of an application under section 401 read with section 482 of the Code of Criminal Procedure, 1973. It is directed against the order dated 22nd July, 2011 passed by the learned Judicial Magistrate, 2nd Court, Barrackpore, North 24 Parganas in M. Case No. 40 of 2009 rejecting the prayer of the petitioners for maintenance as per the provision of section 125 of the Code of Criminal Procedure. 2. The relevant facts of the present case are, in a nutshell, as follows:- Petitioners herein initiated the proceeding under section 125 of the Code of Criminal Procedure against their daughter-in-law praying for their maintenance of Rs. 10,000/- per month as they had no independent source of income and wore unable to maintain themselves. It is the case of the petitioners that their elder son Sanjoy Rajak to whom they were dependent, was an employee of Eastern Railway, Kanchrapara Workshop. On 31.10.2003 the said Sanjoy Rajak died and his widow/O.P. No. 2 herein got the service of her deceased husband on compassionate ground and also on the basis of the no objection certificate issued by the present petitioners to the Railway Authority. It is also the case of the petitioners that they issued the said no objection certificate on being assured by their daughter-in-law that she would maintain them after getting service of her deceased husband. But she did not keep her promise and never provided anything towards their maintenance. On the other hand she after getting the said service left her matrimonial home and started living at her brother's house. 3. As against this O.P. No. 2 contested the said proceeding by filing written objection wherein the allegations made by the petitioners had been denied. It is specifically stated in that written objection that the petitioners were not entitled to get any maintenance from their widow daughter-in-law as per the provision of section 125 of the Cr. PC. Dismissal of the application under section 125 Cr. PC had been so prayed for. 4. Now on careful perusal of the records of this case and Annexure- 'P2' at Page No. 26 it appears that during pendency of the proceeding one application was filed on behalf of the opposite party/daughter-in-law praying for dismissal of the proceeding on the ground of non-maintainability of the case. PC had been so prayed for. 4. Now on careful perusal of the records of this case and Annexure- 'P2' at Page No. 26 it appears that during pendency of the proceeding one application was filed on behalf of the opposite party/daughter-in-law praying for dismissal of the proceeding on the ground of non-maintainability of the case. Accordingly, the learned Magistrate after hearing both parties passed the impugned order dismissing the case for maintenance. 5. After taking into consideration all relevant facts and materials on record and giving due regard to the submissions made by the learned counsel for the petitioners, I think that the only point requiring adjudication is whether or not the impugned order dated 22nd July, 2012 passed by the learned Judicial Magistrate, 2nd Court. Barrackpore, North 24 Parganas in M. Case No. 40 of 2009 is liable to be set aside. 6. Now, in this case, it is to be ascertained whether or not the parents-in-law are entitled to get any maintenance from their widow daughter-in-law who on the strength of no objection certificate issued by the parents in-law, got the service of her deceased husband. 7. In the instant case there is no controversy that the petitioners are the parents-in-law of the Opposite Party. There is also no controversy that after the death of Sanjoy Rajak, son of the petitioners. Opposite Party herein got the service on compassionate ground and the petitioners herein also issued no objection certificate to the Railway Authority so that the O P herein would get the said job. 8. The controversy mainly relates to the question as to whether the parents-in-law are entitled to get maintenance from their daughter-in-law under the provision of section 125 of the Code of Criminal Procedure. 1973. 9. As per section 125 of the Code of Criminal Procedure (sic) wife which includes woman after divorce who has not remarried, is entitled to maintenance if she cannot maintain herself. Minor child, legitimate or illegitimate, unable to maintain itself and major child, legitimate or illegitimate (excepting married daughter) unable to maintain itself owing to any physical or mental abnormality or injury and also parents unable to maintain themselves, are entitled to get maintenance from the person who despite means neglects or refuses to maintain them. 10. Minor child, legitimate or illegitimate, unable to maintain itself and major child, legitimate or illegitimate (excepting married daughter) unable to maintain itself owing to any physical or mental abnormality or injury and also parents unable to maintain themselves, are entitled to get maintenance from the person who despite means neglects or refuses to maintain them. 10. So from the provisions of section 125 of the Code of Criminal Procedure, it appears that the said section does not provide any relief in favour of the parents-in-law who have no independent source of income and are unable to maintain themselves, to claim any maintenance from their daughter-in-law. 11. The widow daughter in-law who has sufficient means may, in the facts and circumstances of the instant case, have moral obligation to maintain her parents-in-law but she has no legal obligation under section 125 Code of Criminal Procedure to maintain them. 12. In that view of the matter, the impugned order does not suffer from any illegality or impropriety or material irregularities. The instant application under section 401 read with section 482 Code of Criminal Procedure therefore being devoid of merit, is liable to the dismissed. 13. So, the instant application fails. 14. C.R.R. No. 2751 of 2011 is dismissed and in the nature and background of the case without costs. 15. The impugned order dated 22.07.11 passed by the learned Judicial Magistrate. 2nd Court, Barrackpore, North 24 Parganas in M. Case No. 40 of 2009 is hereby affirmed. Let a copy of this judgment be sent to the learned Trial Court for information and necessary action. Urgent photostat certified copy of this Judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.