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2012 DIGILAW 959 (CAL)

Bikash Chand v. Falguni Chand

2012-10-17

DIPAK SAHA RAY

body2012
Judgment :- Dipak Saha Ray, J. The present case arises out of an application Under Section 482 of the Code of Criminal Procedure, 1973 for reversing/ setting aside and/or quashing the order dated 11.04.2011 passed by the learned Additional Sessions Judge (Redesignated), Bankura in Criminal Revision No. 63 of 2010 reversing the Judgment and order dated 28.06.2010 passed by the Learned Judicial Magistrate, 6th Court, Bankura in Misc. Case No. 45 of 2009. The relevant facts of the present case are, in a nutshell, as follows: Opposite Party No. 1 herein as petitioner filed an application Under Section 125 of the Code of Criminal Procedure against her husband for maintenance which was registered as Misc. Case No. 45 of 2009. In the said application, it has been contended that she was the legally married wife of the Opposite Party. After marriage she was subjected to torture by her husband and in-laws both mentally and physically and ultimately she was driven out from her matrimonial home; as a result, she was forced to live at her father’s house. It is alleged that she had no independent source of income. It is further alleged that the petitioner has also lodged a written complaint with the Joypur, Police Station against her husband and in-laws and accordingly, a case Under Section 498A of the Indian Penal Code was started against them. As against this, the Husband/Opposite Party contested the case by filing written objection wherein the allegations made in the application for maintenance had been denied. After hearing both sides and also after considering the evidence adduced by the parties, the learned Trial Court rejected the prayer of the petitioner for maintenance. Being aggrieved by the said order. The Wife/Opposite Party No. 1 herein preferred revisional application before the Additional Sessions Judge, Bankura and the learned Revisional Court after considering the facts and circumstances of the case has allowed the revisional application and has set aside the order of the learned Magistrate dated 28.06.2010 passed in Misc. Case No. 45 of 2009. The learned Revisional Court has also directed the husband to pay Rs. 3,000/-per month to his wife as her maintenance. Being aggrieved by and dissatisfied with the impugned order dated 11.04.2010 passed by the Revisional Court, the Petitioner/Husband has preferred the instant application Under Section 482 of the code of Criminal Procedure. Case No. 45 of 2009. The learned Revisional Court has also directed the husband to pay Rs. 3,000/-per month to his wife as her maintenance. Being aggrieved by and dissatisfied with the impugned order dated 11.04.2010 passed by the Revisional Court, the Petitioner/Husband has preferred the instant application Under Section 482 of the code of Criminal Procedure. The grievances of the Petitioner/Husband may be capsulated in a few sentences as follows: The Learned Additional Sessions Judge, Bankura has failed to appreciate the case in its proper perspective and approached the case from a wrong angle and this has resulted in failure of justice. The learned Revisional Court did not take notice of the fact that the wife without any sufficient reason refused to live with her husband though her husband time and again tried to bring her back to his house. The Learned Advocate for the petitioner/husband has submitted by pointing out the testimonies of the witnesses of the said Misc. Case that the husband/petitioner herein time and again attempted to being her Wife/Opposite Party No. 1 herein back to his house; but all his said attempts yielded no result. It is further submitted that the evidence of the wife goes to show that she is not willing to go to her matrimonial home for living with her husband and that no reason has been given for her such refusal to live with her husband. In such circumstances, as per the provision of Section 125(4) of the Code of Criminal Procedure, the Opposite Party No. 1 is not entitled to get any maintenance from her husband. In the instant case there is no controversy that Opposite Party No. 1 herein is the legally married wife of the petitioner herein. There is also no controversy that the Opposite Party No. 1 is now living at her father’s house. There does not appear to be any controversy that Opposite Party No. 1 herein lodged F.I.R against her husband and in-laws and accordingly a case Under Section 498A of the Indian Penal Code was started. There is also no controversy that the Opposite Party No. 1 is now living at her father’s house. There does not appear to be any controversy that Opposite Party No. 1 herein lodged F.I.R against her husband and in-laws and accordingly a case Under Section 498A of the Indian Penal Code was started. The controversy mainly relates to the question as to (i) whether Opposite Party No. 1 has any independent source of income; (ii) whether she is able to maintain herself; (iii) whether the petitioner herein refused and/or neglected to maintain his wife/Opposite Party No. 1 and (iv) whether Opposite Party No. 1/wife has sufficient reason for such refusal to live with her husband. Now after taking into consideration all relevant facts and materials and giving due regard to the submission made by the learned counsels for both the parties, it appears that the following three points are required to be considered (i) whether there is sufficient ground for proceeding against the petitioner; (ii) whether there is abuse of the process of the Court; and (iii) whether ends of justice demands quashing of the proceeding. It has already been pointed out that the wife/Opposite Party No. 1 herein in her application Under Section 125 of the Code of Criminal Procedure has made some allegations that her husband and in-laws subjected her cruelty and ultimately drove her out from her matrimonial home. In the said application, she has also stated that she lodged a written complaint with the Police Station and accordingly a case under Section 498A of the Indian Penal Code was initiated. So, it is evident that there was allegation against the petitioner and his family members that they used to inflict torture on Opposite Party No. 1. It is well settled that torture or ill-treatment, cruelty and/or inhuman behavior to wife by the husband have been held to be sufficient reason for refusing to live with the husband. In the instant case, there is nothing on record to establish that the petitioner herein has been paying anything towards the maintenance of Opposite Party No. 1 herein. It is well settled that if a man is healthy and able bodied, he must be held to be possessed or means to support his wife, child etc. In the instant case, there is nothing on record to establish that the petitioner herein has been paying anything towards the maintenance of Opposite Party No. 1 herein. It is well settled that if a man is healthy and able bodied, he must be held to be possessed or means to support his wife, child etc. Even the husband may be insolvent or a professional beggar or a minor or a monk but he must support his wife so long as he is able bodied and to eke out his livelihood. The husband cannot keep away his liability to maintain his wife who has no independent source of income on the mere ground that she is living separately. It has been held in a decision reported in 1995 SCC (Cri) 836 [Mannava Satyawati & Ors Vs. Mannava Malleswara Rao & Ors.] that “…… We are of the view that the District Judge and the High Court fell into patent error in denying the maintenance to the appellants. The High Court fell into patent error in reaching the finding that since the wife and the children left 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 said decision, it appears that living separately from the husband cannot be the ground of refusing the prayer of the petitioner/wife for her maintenance. Having regard to the above facts and circumstances of this case and the discussions made above, it appears that the impugned order does not suffer from any illegality, impropriety or material irregularity. I do not find any reason to interfere into the observations made by the learned Sessions Judge in the impugned order dated 11.04.2011. In view of the above I find no merit in the present application Under Section 482 of the code of Criminal Procedure which accordingly must be dismissed. The instant application accordingly fails. The impugned order dated 11.04.2011 passed by the learned Additional Sessions Judge (Redesignated), Bankura in Criminal Revision No. 63 of 2010 is hereby affirmed. C.R.R. No. 1627 of 2011 is dismissed. There is no order as to the costs.