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2012 DIGILAW 870 (GAU)

Pabitra Kalita v. Rashmita Dutta

2012-07-23

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482 Cr.P.C., the petitioner has put to challenge the judgment and order, dated 20.08.2011, passed in Criminal Revision No. 06 of 2011, by the learned Sessions Judge, Jorhat, dismissing the revision and upholding thereby the order, dated 26.11.2010, passed, in Misc. Case No. 57 of 2009, by the learned Chief Judicial Magistrate, Jorhat, whereby the learned Chief Judicial Magistrate, in a proceeding under Section 125 Cr.P.C., directed the present petitioner, as father of the minor child, to pay maintenance @ Rs.2500/- per month from the date of making of the application for maintenance. Aggrieved by the directions, so given, the petitioner, who is, admittedly, the father of the said minor child, is, now, before this Court with the help of the present application made under Section 482 Cr.P.C. I have heard Mr. RP Sarmah, learn Senior counsel, assisted by Ms. R. Devi, learned counsel, appearing on behalf of the petitioner, and Mr. P. Kataki, learned counsel for the opposite party. 2. Before coming to the merit of the present application made under Section 482 Cr.P.C., it may be noted that by filing an application, under Section 125 Cr.P.C., the opposite party herein, as first party, claimed maintenance from the present petitioner, as second party, for her own self as the legally married wife of the present petitioner contending therein, inter alia, that her marriage was solemnized, on 20.04.2008, in accordance with Hindu rites and customs, the case of the first party being, in brief, thus: The second party had been ill treating the first party, while she was pregnant and, for about five months since after the time she had conceived, the first party bore the cruelty, which she was subjected to by the second party. On the occasion Panchamreet, which is a religious ceremony required to be performed at the parental house of wife, when the first party prepared herself to go to her parental house, the second party threatened her not to return back to her matrimonial home if she happen to give birth to a female baby. Since the time, the first party left her matrimonial house for the said ceremony, the second party never tried to meet the petitioner and she, eventually, gave birth to a baby girl at Jorhat Civil Hospital. Since the time, the first party left her matrimonial house for the said ceremony, the second party never tried to meet the petitioner and she, eventually, gave birth to a baby girl at Jorhat Civil Hospital. On the date of delivery of the said child, the second party did visit the hospital; but soon after the birth of the daughter and without even looking at his daughter, the second party left the hospital telling that he would not accept the daughter and that the daughter must be sold out. The second party did not even pay the bill of the expenses in the hospital. Left with no alternative, the first party had to start living, on her release from the hospital, at her parental house. As the first party has no source of livelihood, it is not possible, on her part, to maintain herself and her daughter and the second party, despite earning handsome salary, never paid any maintenance to either his wife or for the purpose of maintenance of his daughter. 3. The second party resisted the proceeding by filing a written statement, his case being, briefly stated, that he never ill treated his wife, he wanted to take back the first party and his daughter to his home, but the first party, without assigning any reason, refused to go back to his matrimonial house, because the first party wanted the second party to live, at -her parental house, as Gharjamai (i.e., a son-in-law, who lives with his in laws); but as the second party did not agree to the demand, so made by the first party, the second party, according to her own will, started residing at her parental house and, hence, the second party cannot be held responsible for neglecting and/or refusing to maintain either the first party or their daughter. 4. 4. Upon recording evidence adduced by the parties concerned, the learned Chief Judicial Magistrate, as indicated above, concluded that as far as the first party was concerned, she is not entitled to any maintenance to be paid by the second party, but considering the fact that the child, in question, was a minor child and she had to live with her mother, she was entitled to be maintained by her father and, hence, when the second party draws a salary of Rs.10,000/- per month, he shall pay a sum of Rs.2,500/-, per month, as maintenance for his female child from the date of making of the application. 5. Aggrieved by the directions, so given, the second party, as mentioned above, had impugned the said directions in revision. As the revision has been dismissed by the learned Sessions Judge, Jorhat, the second party is, now, before this Court as the petitioner. 6. I have carefully examined the order, which has been passed by the learned Chief Judicial Magistrate and also the revisional order. 7. The learned Sessions Judge has clearly pointed out that the learned Chief Judicial Magistrate has not allowed maintenance in favour of the first party on the ground that she had left her matrimonial house without any valid reason, but since the minor child has had been with the first party, the second party, having fathered the said child and having paid no maintenance since after the birth of the child, is liable to pay, as has been rightly held by the learned Chief Judicial Magistrate, maintenance @ Rs.2,500/- per month inasmuch as the said sum of Rs.2500/- payable per month, as maintenance, forms barely 1/4th of the total salary, which is received by the second party. This Court does not find any infirmity, legal or factual, in the conclusions, so reached by the learned Chief Judicial Magistrate and upheld by the learned Sessions Judge. 8. This Court does not find any infirmity, legal or factual, in the conclusions, so reached by the learned Chief Judicial Magistrate and upheld by the learned Sessions Judge. 8. When the second party is, admittedly, the father of the said child, it is his duty to ensure that the said child is properly maintained and since the said child has been retained by her mother, the second party, as father of the said child, is legally bound to pay maintenance so long as the custody of the said child remains with her mother and the amount of maintenance, which has been directed to be paid by him, is, in the facts and attending circumstances of the present case, neither excessive nor unreasonable. 9. Coming to the question, which has been raised, on behalf of the second party-petitioner, that the maintenance ought not to have been allowed from the date of the making of the application for maintenance, suffice it to point out that there is no credible and convincing evidence on record that the second party ever paid any sum of money for the purpose of maintenance of his daughter. In such circumstances, the learned Chief Judicial Magistrate was not wrong in directing that the maintenance be paid for the said child with effect from the date of making of the application for maintenance and the learned Sessions Judge has committed no error of law or fact in upholding this direction. 10. Because of what have been discussed and pointed out above, this Court finds no merit in this application made under Section 482 Cr.P.C. This application, therefore, fails and shall accordingly stand dismissed. Send back the LCR. Application dismissed.