Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 863 (CAL)

Soniya Khatun v. Sekh Akib Jabbed

2017-11-10

MD.MUMTAZ KHAN

body2017
JUDGMENT : MD. MUMTAZ KHAN, J. 1. The instant revision has been preferred by the petitioner/wife assailing the order dated March 7, 2017 passed by the learned Judicial Magistrate, Baruipur, South 24 Parganas in M-Case No. 294 of 2016 (T.R. Case No. 294 of 2016, Reg. No. 350 of 2016) rejecting the petitioner's prayer for interim maintenance. The facts relating to the instant criminal revision, in brief, is that this petitioner/wife filed an application under section 125 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) against opposite party No. 1/husband before the A.C.J.M., Baruipur on August 4, 2016 praying, for her maintenance. The said application was registered as M. Case No. 294 of 2016 and was transferred to the court of learned Judicial Magistrate, Baruipur for disposal. On November 11, 2016 petitioner filed another application praying for granting interim maintenance allowance in her favour. O.P. No. 1 appeared and contested the said application. Thereafter on hearing both parties learned Magistrate rejected the prayer for interim maintenance by the impugned order. 2. It was submitted by the learned advocate appearing for the petitioner that since after marriage of the petitioner with the O.P. No. 1, on October 15, 2015, she was subjected to cruelty at the matrimonial home and was pressurized to bring more money and when the petitioner failed to meet the demand she was driven away from the matrimonial home on July 19, 2016, for which she had to lodge diary at the Baruipur P.S., and since then she is residing at her father's house and is fully dependent on her parents as she has no means of her own to maintain herself while the O.P. No. 1 in spite of his sufficient means has failed and neglected to pay any maintenance allowance or any single farthing to the petitioner. It was also submitted by him that the learned Magistrate in spite of coming to a finding that the petitioner is the legally married wife of the O.P. No. 1 having no means of her own to maintain herself and she is staying at her parent's house and the O.P. No. 1 is not providing any money or other amenities to the petitioner rejected the prayer for interim maintenance only relying upon the advocate's letter sent on behalf of the O.P. No. 1 showing his willingness to take back the petitioner/wife and had complained before the Gram Panchayat. According to the learned advocate for the petitioner, learned Magistrate was not justified in rejecting the prayer for an interim maintenance allowance of the petitioner. 3. It was submitted by the learned advocate for the O.P. No. 1, that the petitioner voluntary left the matrimonial home and in spite of several attempts by the O.P. No. 1 to bring her back she refused to come to the matrimonial home and this O.P. No. 1 is ready and willing to take back the petitioner and maintain her. According him O.P. No. 1 has got no sufficient means to provide separate maintenance allowance to the petitioner and the learned Magistrate taking into account the bona fide efforts on the part of the O.P. No. 1 to take back the petitioner/wife to the matrimonial home was quite justified in rejecting her prayer for the interim maintenance. 4. I have considered the submissions advanced by learned counsels appearing for both parties and also gone through the impugned order and the documents annexed with the instant revision. 5. Admittedly petitioner is the legally married wife of the O.P. No. 1. It is also not in dispute that the petitioner is residing at her father's house since July 19, 2016 and the O.P. No. 1 is not paying any maintenance allowance to her. The claim of the petitioner that she has no means of her own has also not been disputed or denied by the O.P. No. 1. 6. It is true that there are allegations and counter allegations and it is very difficult to arrive at a conclusion at this stage in the absence of any evidence on record. The claim of the petitioner that she has no means of her own has also not been disputed or denied by the O.P. No. 1. 6. It is true that there are allegations and counter allegations and it is very difficult to arrive at a conclusion at this stage in the absence of any evidence on record. But fact remains that object of granting interim maintenance allowance is to prevent vagrancy and destitution and to keep the legally married wife alive till the fate of the original application for maintenance. It is a measure of social justice to protect the weaker section of the society like women and children and to compel a man to perform the moral obligation which he owes to the society in respect of his wife and children so that they are not left beggared and destituted on the scrap heap of the society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The petitioner/wife has claimed that she has no means of her own to maintain herself whereas the O.P. No. 1 has sufficient means to maintain her. Interestingly, on one hand O.P./husband has denied that he has no sufficient means to provide any maintenance allowance to the petitioner/wife while on the other hand he is ready to maintain the petitioner if she return back at the matrimonial home. 7. It is the bounden duty of the husband to maintain his legally married wife who is unable to maintain herself unless it is proved by cogent evidence that without any sufficient reason she has refused to live with her husband or they are living separately by mutual consent and/or that she is living in adultery. It is not the case of the O.P./husband that they are living separately by mutual consent and/or there is any such allegation of adultery. However at this stage it will not be proper to enter into merit of the case as to who is at fault. But the facts remains that O.P. No. 1 is not providing any single farthing to his legally married wife, the petitioner since after her departure from the matrimonial home. It has already been observed earlier that the object of granting interim maintenance allowance is to prevent vagrancy and destitution and to keep the married wife alive till the fate of the original application for maintenance. It has already been observed earlier that the object of granting interim maintenance allowance is to prevent vagrancy and destitution and to keep the married wife alive till the fate of the original application for maintenance. Learned Magistrate relying on the lawyer's letter sent by O.P. No. 1 through his advocate rejected the prayer for interim maintenance and came to the conclusion that such effort on the part of the O.P./husband rules out any kind of refusal and neglect. Keeping in minds the above and considering the entire aspect and the means of the parties I am of the opinion that the learned Magistrate was not justified in rejecting the prayer for interim maintenance allowance of the petitioner/wife relying only on the advocate's letter sent on behalf of the O.P. No. 1. As such the order passed by the learned Magistrate requires interference by this court. Accordingly, the impugned order passed by the learned Magistrate is quashed and set aside. 8. O.P. No. 1/husband, is directed to pay interim maintenance allowance to the petitioner/wife @ 2,000/- per month within 15th of each English calendar month and also pay the arrears within one month from this date failing which petitioner will be at liberty to execute the order as per provisions of law. This order of maintenance will take effect on and from the date on which the petitioner's petition for interim maintenance was disposed of i.e. on and from March 7, 2017. 9. Learned Magistrate is directed to expedite the hearing of the main application and dispose the same as early as possible preferably within 3 months from the date of communication of the order without granting any unnecessary adjournment to either of the parties. 10. It is however made clear that I have not gone into merit of the case and the learned Magistrate will dispose of the main application under section 125 Cr.P.C. without being influenced by any such observation made in the body of the judgment. 11. Petitioner is directed to communicate the order to the learned court below. 12. The instant criminal revisional application is, thus, disposed of. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.