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2015 DIGILAW 384 (CAL)

Bibhashree Karan v. State of West Bengal

2015-04-29

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. In both the CRRs i.e. 1978 of 2014 and 3105 of 2014 a common order dated 29th April, 2014 passed by the Ld. 10th Additional Sessions Court, Alipore in Criminal Motion No. 26 of 2012 is under challenge. The petitioner and the private Opposite Party in both the CRRs are the wife and the husband respectively. 2. In CRR 1978 of 2014 the wife, Mrs. Bibhashree Karan has challenged the order dated 29th April, 2014 on the ground that the Ld. Sessions Court without proper application of mind enhanced the maintenance payable to the wife and her daughter only to Rs.14,000/- per month. It is the contention of the wife that considering the present price hike the amount of maintenance awarded should be still higher. The wife has further contended that she has to bear the expenses of her medical treatment and the husband is in comfortable employment with the railways in the post of senior auditor. 3. On the other hand, in CRR 3105 of 2014 the husband, Sri Bibhas Karan has contended that the maintenance awarded by the Ld. Additional Sessions Court is unreasonably high and the daughter of the parties having since attained majority is not entitled to any maintenance under Section 125 CrPC. 4. By the judgment and order dated 29th April, 2014 the Ld. Additional Sessions Court took up for consideration vide the order dated 23rd November, 2014 passed by the Ld. Chief Judicial Magistrate, Alipore rejecting the application of the wife for enhancement of maintenance under Section 127 CrPC. The Ld. Magistrate allowed maintenance to the tune of Rs. 3000/- per month in favour of the wife and Rs. 4000/- per month for the unmarried daughter by his judgment and order dated 16th February, 2008. 5. The Ld. Additional Sessions Court after observing that the salary of the husband has undergone an upward revision since the date of the order of the ld. Magistrate in the year 2008, the maintenance was enhanced to Rs. 8000/- per month for the unmarried daughter and Rs. 6000/- per month for the wife - in total Rs. 14000/- per month. 6. Sri Sandipan Ganguly, Ld. Counsel appearing for the petitioner-husband in CRR 3105 of 2014 has raised a primary issue of law. Magistrate in the year 2008, the maintenance was enhanced to Rs. 8000/- per month for the unmarried daughter and Rs. 6000/- per month for the wife - in total Rs. 14000/- per month. 6. Sri Sandipan Ganguly, Ld. Counsel appearing for the petitioner-husband in CRR 3105 of 2014 has raised a primary issue of law. Sri Ganguly submits that having regard to the judgment reported in 2009 (3) SCC (Cri) 868 in the matter of Amarendra Kumar Paul v. Maya Paul & Ors. and 2011 (3) C Cr LR (Cal) 548 in the matter of Swapan Kumar Dey v. Jayita @ Chaita Roy no maintenance can be awarded to a daughter who has attained majority. Taking this Court to the facts of the present case Sri Ganguly argues that the daughter of the parties was born in the year 1986. As on date she has attained majority and is nearly 29 years of age. 7. Sri Ganguly also takes this Court to page 65 of CRR 3105 of 2014 which is a provisional pass certificate dated 25th August, 2008 issued by the Womens Polytechnic, Kolkata under the Government of West Bengal certifying that the daughter, Tanushree Karan passed the 3½ years diploma examination in Electronics and Telecommunication Engineering held in June, 2008 by the West Bengal State Council of Technical Education and was placed in the first class with distinction. The said provisional certificate dated 25th August, 2008 further specifies that the final diploma will be issued in due course by the West Bengal State Council of Technical Education. 8. Sri Ganguly, Ld. Counsel, relying on the documents annexed to CRR 3105 of 2014 submits that the daughter who was enrolled with the Institution of Engineers (India) has discontinued her studies effective from the end of 2014. Therefore, according to Ld. Counsel the award of maintenance to the daughter on the ground of meeting her educational expenses is patently bad on facts. Additionally having regard to the fact that Section 125 CrPC does not fix liability on parents to maintain children beyond attainment of majority, even on such ground no maintenance can be awarded to the daughter. 9. Ld. Counsel, Sri Ganguly further submits that at present his client, the husband is paying the amount of Rs. 9000/- as awarded to the wife by way of alimony pendentilite vide order dated 30th July, 2011 passed by the Ld. 9. Ld. Counsel, Sri Ganguly further submits that at present his client, the husband is paying the amount of Rs. 9000/- as awarded to the wife by way of alimony pendentilite vide order dated 30th July, 2011 passed by the Ld. 14th Additional District Court, Alipore. It is argued by Sri Ganguly that the amount of alimony pendentilite takes into account the amount granted in the maintenance proceedings. 10. Sri Ganguly also submits that the Ld. Additional Sessions Court came to an erroneous assessment of the net pay earned by the husband only having regard to his salary for the month of October, 2013. Taking this Court to the salary details of the husband, Sri Ganguly points out that for the month of September, 2013 the husband earned additional amounts by way of arrear DA and DA on TRA, thereby for the particular month of October, 2013 the net pay of the husband rose. However, in comparison to the other months including the last salary details of February, 2014 produced before this Court at page 55 of CRR 3105 of 2014 it transpires that the net pay of the husband is considerably less by an amount of Rs. 10, 000/- 11. On the above ground Ld. Counsel argues that the amount of maintenance awarded by the Ld. Additional Sessions Court is unreasonably high. 12. Per contra, Sri Pradip Kumar Roy, Ld. Counsel appearing for the wife submits on law that although arguably Section 125 on a technicality protects the liability of parents to maintain children beyond attainment of majority, the benefit of personal law for awarding or continuing the maintenance can be given to the daughter in spite of the fact that she has attained majority. 13. Relying on the decision of the Hon'ble Apex Court reported in 2002 (5) SCC 422 in the matter of Jagdish Jugtawat v. Manju Lata & Ors., Sri Roy argues that taking a cue from the provisions of Section 20 (3) of the Hindu Adoptions and Maintenance Act, 1956 which provides for the right of maintenance to a minor daughter till her marriage, the Hon'ble Apex Court declined to interfere with the order passed by the Ld. Family Court. Family Court. Applying the principle that the right of a minor girl to receive maintenance from her parents even after she attained majority continues in view of the principles both under statutory Muslim and Hindu personal laws, Sri Roy submits that in Jagdish Jugtawat (supra) a three judge bench of the Hon'ble Apex Court relied on the decision in Noor Saba Khatoon v. Md. Quasim reported in 1997 (6) SCC 233 . 14. In Noor Saba Khatoon (supra) the Court read the position of law emanating from Section 125 CrPC in the light of Section 3 (i) (b) of the Muslim Women (Protection of Rights on Divorce) Act, to hold that the statutory provisions of personal law do provide for maintenance to be extended beyond attainment of majority by a dependent daughter. A similar view was adopted while applying the personal law recognised in Section 20 (3) of the Hindu Adoptions and Maintenance Act. 15. Ld. Counsel for the wife therefore pointed out that the Hon'ble Apex Court did not interfere with the order passed by the Ld. Family Court granting maintenance to the dependent daughter beyond attaining majority on a combined reading of Section 125 CrPC and Section 20 (3) of the Hindu Adoptions and Maintenance Act. 16. Having noticed the rival submissions this Court finds that having regard to the documents on record annexed to CRR 3105 of 2014 by the petitioner-husband it does not appear that further educational expenses are being incurred in favour of the daughter. No contrary view or documents have been brought to the notice of this Court on behalf of the wife. Therefore, the award of maintenance in favour of the daughter who has attained majority and is now nearly 29 years of age on the ground of continuing her educational expenses when the same is not supported by objective materials shows an erroneous appreciation of the ground realities by the Ld. Additional Sessions Court. 17. At the same time this Court is also required to notice that the daughter has obtained a Diploma in Technical Education with distinction and therefore can be considered to be capable of maintaining herself. Although, at the same time, no materials are forthcoming before this Court to the effect that the daughter is at present gainfully employed. 18. 17. At the same time this Court is also required to notice that the daughter has obtained a Diploma in Technical Education with distinction and therefore can be considered to be capable of maintaining herself. Although, at the same time, no materials are forthcoming before this Court to the effect that the daughter is at present gainfully employed. 18. However, at the same time this Court cannot lose sight of the principle of law enunciated in Jagdish Jugtawat (supra) entitling a dependent daughter to the continuance of maintenance in recognition of her right under the statutory personal law. It is not denied and, the same is a matter of record that the parties have been separated since 1988 when a suit for divorce was filed by the husband. In 1988 the daughter was only two years of age and admittedly minor. The claim to maintenance under Section 125 CrPC was filed by the wife in the year 1988 during the minorityship of the daughter and such maintenance has been enhanced in the year 2008. 19. It is also on record that by order dated 28th July, 2014 an Hon'ble Single Bench upon hearing only the Ld. Counsel for the petitioner-wife in CRR 1978 of 2014 directed maintenance to be paid at Rs. 6000/- in favour of the wife and Rs. 9000/- in favour of the daughter - totalling Rs. 15,000/- per month with effect from the date of filing the application under Section 127 CrPC. Such order was passed without prejudice to the rights and contentions of the parties to be decided in the main criminal revisional application. 20. The further fact cannot be lost sight of that the husband is in comfortable employment under the railways in the position of a senior auditor and has benefited from an upward revision of salaries from time to time. The benefit of maintenance enjoyed by the daughter right from the time she was a minor cannot be snatched away merely on the ground that she has attained majority in view of the application of the provisions of statutory personal law which provide for her dependence on the parents till marriage. The benefit of maintenance enjoyed by the daughter right from the time she was a minor cannot be snatched away merely on the ground that she has attained majority in view of the application of the provisions of statutory personal law which provide for her dependence on the parents till marriage. In the event the maintenance is denied to the daughter on the ground of majority ship and consequent non-application of Section 125 CrPC, it will always be open to the daughter to claim maintenance under statutory personal law thereby resulting in a multiplicity of proceedings. Such a course of action has not been approved of by the Hon'ble Apex Court in Jagdish Jugtawat (supra). 21. This Court is of the further opinion that the wife is however entitled to be continued in her maintenance since she has no means of income. On the other hand the employment status of the daughter is not before this Court and from her educational qualification it does not appear that she is not employable. 22. Having further regard to the salary details of the husband as annexed to CRR 3105 of 2014 it appears to this Court that the average net pay of the husband after deductions is around Rs. 33,000/- per month. Having regard to such fact this Court directs that the wife shall continue to receive the amount of Rs. 9000/- per month towards maintenance inclusive of the alimony pendentilite and the daughter shall receive maintenance of Rs. 3000/- per month - totalling Rs. 12,000/- per month. Such maintenance shall be paid from the date of the application under Section 127 CrPC and within the 10th day of each succeeding month beginning May, 2015. The arrears, if any, shall be liquidated in six instalments within a period of nine months from the date of this order. 23. The judgment and order of the Ld. Additional Sessions Court dated 29th April, 2014 is accordingly modified and both the CRRs 1978 of 2014 and 3105 of 2014 along with their connected applications stand disposed of. 24. The proceedings in Criminal Motion No. 26 of 2012 pending before the Ld. 10th Additional District Court, Alipore also stand disposed of as above. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.