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2012 DIGILAW 818 (CAL)

Sujan Chakraborty v. Madhumita Chakraborty

2012-08-30

TOUFIQUE UDDIN

body2012
JUDGMENT Toufique Uddin, J. 1. These two revisional applications under section 482 of the Code of Criminal Procedure, 1973 were filed for quashing the M. case No. 54 of 2011 and setting aside the order dated 8.6.2011 passed by the learned Judicial Magistrate, 5th Court, Alipore, South 24-Paraganas. Such applications being correlated were taken up for hearing together. Those were filed at the instance of one Sri Sujan Chakraborty against whom one Smt. Madhumita Chakraborty filed maintenance case No. 54 of 2011 mainly on the following grounds: The petitioner who was a constable driver of 14, BN SSB, Border Security Force has by order dated 22.12.2011 been punished by his employer on charge of bigamy and had suffered a penalty of compulsory retirement and is getting pension @ Rs. 5300/- p.m. 2. The petitioner is legally married to one Chaitali Chakraborty and has two daughters born on 18.7.94 and 2.12.2002 respectively. 3. In 2008, he came to Calcutta for treatment and came in contact with the O.P. No. 1 who filed an application under section 125 of the code of criminal Procedure stating inter alia that before her marriage to the petitioner on 18.6.2008, she was a medical practitioner attached to Rakhi Pharmacy, Ramthakur Pharmacy and Kedarnath club at Kasba. Thereafter, she was practicing at gangabihar siwan. The marriage was solemnized at Kalighat and she paid Rs. 227000/- for her medical practice. She was subjected to torture and cruelty and was not given maintenance. She was compelled to give up her practice and is unable to maintain herself. Since April, 2010, she has not received any maintenance. 4. The petitioner did not receive any copy of application alongwith summons. But surprisingly, the matter was disposed of ex parte without giving sufficient time between two dates. Only after receipt of copy of notice in M. Executive Case No. III of 2011, he realized that an ex parte order of maintenance was passed against him and he was to pay a sum of Rs. 70000/- only from February, 2011 to December, 2011. Appearing before the learned Court below on 6.2.2011, he prayed for a copy of application alongwith the notice to enable him to file show-cause. But ex parte order was passed against the petitioner on 8.6.2011. 5. 70000/- only from February, 2011 to December, 2011. Appearing before the learned Court below on 6.2.2011, he prayed for a copy of application alongwith the notice to enable him to file show-cause. But ex parte order was passed against the petitioner on 8.6.2011. 5. Being aggrieved by and dissatisfied with the order dated 8.6.2011 passed by the learned Magistrate, 5th Court, Alipore in M. Case No. 54 of 2011, the petitioner has come up with two revisional cases on the ground that in undue haste the learned Court below disposed of the matter ex parte without giving the petitioner any chance of hearing. The matter was disposed of without any application of mind and the learned magistrate had failed to appreciate that unrebutted statement of the claimant reveals that she was a successful medical practitioner and was able to maintain herself. 6. Mrs. Chandreyee Alam, learned counsel for the petitioner launched her submission with reference to the contentions made in the petition itself for the purpose of setting aside the impugned order and quashing the main maintenance case. 7. On the other hand, the learned counsel for the O.P. No. 1 strongly resisted the prayer of the petitioner and at the very outset contended that the present application is not at all maintainable because the petitioner suppressed material facts and by passing the specific provisions of section 126(2) of the Code of Criminal Procedure he has come up at a belated stage in a round about way, without filing any petition under section 5 of the Limitation Act. The impugned order was passed on 8.6.2011 and the petitioner became aware of the impugned order on 6.2.2012 and then again the affidavit annexed to the petition itself was sworn in on 5.7.2012. 8. It was further contended by the learned counsel for the opposite party that no impropriety has been committed in this case. As such the prayer of the petitioner should be set at naught outright. 9. I have duly considered the contentions put forward by the learned counsel for both the parties and examined the materials so far available on record. 10. As such the prayer of the petitioner should be set at naught outright. 9. I have duly considered the contentions put forward by the learned counsel for both the parties and examined the materials so far available on record. 10. It is trite law that the High Court may exercise its extraordinary power under section 482 of the Code of Criminal Procedure in very exceptional cases and sparingly in deserving situations and not as a wholesale measure to open the flood gate of litigation even on trifling grounds. The proceedings under section 125 of the Code of Criminal Procedure is one which is a mixture of question of fact and question of law the adjudication for which is the proper place at Trial Court. Of course, it is to be borne in mind that prima facie the Court has to be satisfied if the present petitioner deserves any order sought for under the provisions of section 482 of the Code of Criminal Procedure. 11. The petitioner at the very first paragraph has stated that on the charge of bigamy he has suffered a penalty of compulsory retirement. That is a pointer impliedly to the claim of the O.P. No. 1 that she is wife of the present petitioner. The petitioner has annexed nomination papers showing the members of his family viz. one Chaitali Chakraborty as his wife and a certificate to show the birth of her so called two children. Therefore, there appears oath vs, oath. But all these matters are related to the determination of the question of fact with reference to connected laws at Trial Court and not in this revisional forum. 12. The Revisional Court should not travel into the domain of Trial Court. It is well settled principle that the disputed question of fact would not be gone into by the High Court in a revision, reliance may be placed on (2002) Cr.LJ 2462 MP. 13. The very factum of marriage has been challenged by the learned counsel for the petitioner. In support of the contention learned counsel for the petitioner relied upon the decision as reported in AIR 2005 SC 1809 wherein Hon'ble Apex Court propounded that for the purpose of maintenance under section 125 of the Code of Criminal Procedure any scope cannot be enlarged to include woman not lawfully married. 14. In support of the contention learned counsel for the petitioner relied upon the decision as reported in AIR 2005 SC 1809 wherein Hon'ble Apex Court propounded that for the purpose of maintenance under section 125 of the Code of Criminal Procedure any scope cannot be enlarged to include woman not lawfully married. 14. The learned counsel placed reliance on another decision as reported in (1982) 3 SCC 369 wherein it was held that ex parte order of the learned magistrate and of the High Court were set aside and the matter was remanded for being disposed of afresh by the learned Magistrate. 15. Where on the face of the record itself, an aggrieved petitioner can show any illegality in the procedure or impropriety in exercise of power of the learned magistrate in passing ex parte maintenance order, there is no bar for such a petition under section 482 of the Code of Criminal Procedure in the High Court without first moving an application before the learned magistrate under section 126 of the Code. It depends on the facts of each case to decide whether resort to the revisional power is permissible or not by an aggrieved person before first exercising his remedy available under section 126 of the Code of Criminal Procedure. In this regard, reliance may be placed on a decision reported in (1990) Cr.LJ 2265. On examination of record, it appears that the present petitioner came to know about the existence of original case filed by the opposite party well before the date of passing of impugned order dated 8.6.2011 but the fact remains that the present petitioner filed a petition on 6.3.2012 stating that after receipt of the notice from the Court he is appearing through his learned counsel but he could not file show-cause as the copy of the petition has not been supplied to him. And ultimately the maintenance case was disposed of ex parte. This is a matter to be reckoned with. 16. Therefore, the present petitioner should be given a chance to fight out the original case otherwise there may arise possibility of miscarriage of justice. At the same time, it is equally worth mentioning that pending final adjudication, the claim of O.P. No. 1 should not be prematurely dismissed. 17. In the result, the revisional application succeeds in part. 16. Therefore, the present petitioner should be given a chance to fight out the original case otherwise there may arise possibility of miscarriage of justice. At the same time, it is equally worth mentioning that pending final adjudication, the claim of O.P. No. 1 should not be prematurely dismissed. 17. In the result, the revisional application succeeds in part. The impugned order dated 8.6.2011 is modified to the extent that the petitioner is given liberty to submit his show-cause in the Court below with proper explanation of delay subject to certain terms mentioned hereinafter. The opposite party also is directed to supply copy of the main petition under section 125 of the Code of Criminal Procedure to the present petitioner. Thereafter, the learned Magistrate shall dispose of the main case according to law expeditiously preferably within four months from the date of receipt of this order. 18. In the meantime, pending the disposal of the Maintenance Case No. 54 of 2011, the petitioner shall go on making payment @ Rs. 3500/- p.m. to the O.P. No. 1 by the corresponding 7th proximo. In case of a solitary default in payment of such monthly maintenance amount, the privilege granted above shall stand withdrawn. 19. Both the revisional cases viz. CRR No. 825 of 2012 and CRR No. 826 of 2012 arising out of the same cause of action and being between the same parties are disposed of. I pass no order as to costs. Urgent certified copies, if applied for, be issued to the parties according to rules.