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2015 DIGILAW 467 (CAL)

Amar Kundu v. Upta Kundu

2015-06-05

SUBRATA TALUKDAR

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JUDGMENT Subrata Talukdar, J. In this revisional application the judgment and order dated 5th February, 2014 passed by the Ld. 4th Judicial Magistrate, Krishnanagar, Nadia in MR Case No. 876(IV) of 2011 corresponding to TR Case No. 949 of 2011 directing the present petitioner-husband to pay maintenance amounting to Rs. 7000/- to the OP1-wife along with arrears is under challenge. Ld. Magistrate was further pleased to direct payment of the maintenance with effect from the date of filing the application, i.e. 15th December, 2011. Sri Kushal Kumar Mukherjee, Ld. Counsel for the petitioner makes the primary point before this Court that the Ld. Magistrate failed to appreciate that from the evidence of OP1-wife it has emerged that she is agreeable to return to her matrimonial home only if the petitioner-husband would provide her with a separate accommodation. Sri Mukherjee, Ld. Advocate argues that such clinching evidence given by the OP1-wife discloses in no uncertain terms that she left her matrimonial home without any sufficient reason. Therefore, the award of maintenance in her favour is barred by invoking the provisions of Section 125(3) of the CrPC. Taking this Court to the evidence of OP1-wife Sri Mukherjee, Ld. Advocate submits that the very fact that the OP1-wife has placed conditions for return to her matrimonial home proves that her other complaints with regard to ill-treatment at the hands of her in-laws is unfounded. Per contra, Ms. Anee Ray, Ld. Counsel for the OP1-wife takes this Court to the elaborate and consistent evidence of the OP1-wife wherein she complains of illegal demand for dowry and torture at the hands of the petitioner-husband and her in-laws. According to Ms. Ray, the OP1-wife has stated in detail that she was beaten up on 22nd May, 2011 when her father could not meet the demand of Rs. 1 lakh raised by the petitioner-husband. The OP1-wife has stated that she along with her infant daughter were ultimately cared for by her father and there was no attempt on the part of her husband and her in-laws to even enquire about her welfare, leave alone the necessity of maintenance. Ms. 1 lakh raised by the petitioner-husband. The OP1-wife has stated that she along with her infant daughter were ultimately cared for by her father and there was no attempt on the part of her husband and her in-laws to even enquire about her welfare, leave alone the necessity of maintenance. Ms. Anee Ray points to the fact that the OP1-wife has denied in her evidence that she visited her father’s place frequently since such frequent visits can be automatically ruled out by noticing that the distance between her father’s place and the place of posting of the petitioner-husband is 450 kms. Ld. Counsel for the OP1-wife submits that the evidence of the wife as portrayed through the demand of a separate accommodation should be construed in the backdrop of the entire facts and circumstances and not, in an isolated fashion. Taking this Court to the relevant portion of the evidence Ms. Ray submits that in view of the merciless bad treatment received by the OP1-wife she is now worried about the fate of her daughter at the hands of her in-laws. Therefore, for the safety of her infant daughter the OP1-wife has spoken of a separate accommodation. However, not for a moment the OP1-wife could be shaken from the grain of her evidence that she was tortured at the place of her in-laws. Having heard the parties and considering the materials on record this Court finds that the evidence of the OP1-wife consistently speaks of the issue of money and expenses raised by the petitioner husband and her in-laws qua the OP1-wife and her infant daughter. This Court also cannot lose sight of the conduct of the petitioner-husband who has taken no steps to bring back the OP1-wife and her daughter to the matrimonial home and allowed her to stay there without making any enquiry with regard to their welfare. This Court also finds it credible that the allegation of frequent visits by the OP1-wife to her parents is rebutted by the huge distance between the place of her father and the place of posting of the petitioner-husband in respect of which there is no credible denial from the petitioner-husband. It is also noticed that after the OP1-wife decided to legally proceed against the petitioner-husband in view of her destitute condition and, by way of a token solace the petitioner-husband remitted a sum of Rs. 1000/- only which, was refused. It is also noticed that after the OP1-wife decided to legally proceed against the petitioner-husband in view of her destitute condition and, by way of a token solace the petitioner-husband remitted a sum of Rs. 1000/- only which, was refused. In her evidence the OP1-wife has given the precise dates of occurrence of her ill-treatment at her matrimonial home. Next, noticing the deposition of the petitioner-husband this Court finds that he has admitted to giving an amount of Rs. 7000/- ad hoc when he came to see his daughter at the home of the parents of OP1. The petitioner-husband also claims to have given Rs. 2000/- at the ‘sadh’ ceremony. However, the OP1-wife refused to accept such amounts. The evidence of the petitioner-husband is further noticed to the effect that he claims that he is a government employee and his mother is dependent upon him. However, at the same time this Court notices that the father of the petitioner-husband was a government employee and, upon his death the widow, that is the mother of the petitioner-husband is receiving family pension. Moreover, there is no unequivocal denial by the petitioner-husband of not having received cash and jewellery from the OP1-wife which formed part of his assets declaration before his employer. This Court also notices that soon after the OP1-wife filed the matrimonial proceeding under Section 498A IPC on 15th December, 2011, on 21st January, 2012 the petitioner-husband sent a money order of Rs. 1000/-. The family pension received by the mother of the petitioner-husband is also testified to by OPW2, the brother of the petitioner-husband. It is also noticed by this Court that although the petitioner-husband claims that repeated efforts were made by him and his family members to bring the OP1-wife back to the matrimonial home, vital witnesses in this respect such as his maternal uncle, one Ashoke Kundu were never examined. In the background of the above discussion this Court is of the view that the Ld. Magistrate elaborately considered every part of the issue. This Court reiterates that in his evidence the petitioner-husband has admitted to the fact that he paid Rs. 7000/- to the OP1wife for herself and her daughter when he visited them for the first time at her parental home. Magistrate elaborately considered every part of the issue. This Court reiterates that in his evidence the petitioner-husband has admitted to the fact that he paid Rs. 7000/- to the OP1wife for herself and her daughter when he visited them for the first time at her parental home. Therefore, having regard to the further fact that the petitioner-husband is in comfortable employment as a Sub-Assistant Engineer in the Waterways Department under the State and, has the capacity to pay the amount of Rs. 7000/- consolidated as directed by the Ld. Magistrate, the order impugned warrants no interference. The petitioner-husband shall comply without further delay with the directions passed by the Ld. Magistrate including payment of the arrears failing which the OP1-wife shall be entitled to put the same to execution forthwith. CRR 1133 of 2014 stands accordingly dismissed. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.