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2019 DIGILAW 266 (CAL)

PRABIR KUMAR PALIT v. RUNU PALIT

2019-02-25

JAY SENGUPTA

body2019
JUDGMENT : JAY SENGUPTA, J. 1. The two revisional applications being CRR No. 2921/14 and CRR No. 1002/17 were taken up together for final hearing as the same were connected ones. The petitioner filed the revisional application being CRR No. 2921/14 (the revision of 2014, for short) challenging an order dated 22.07.2014 passed by the Learned Additional Sessions Judge, 17th Court, Alipore, South 24 Paraganas in Criminal Motion No. 01/14, thereby, modifying the original of order dated 09.10.2013 passed by the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Paraganas in Misc Case No. 649/09 under Section 125 of the Code and directing the petitioner to pay maintenance at the rate of Rs. 10,000/- to the present opposite party no. 1 for herself and Rs. 7000/- per month for her daughter/added opposite party no. 3 from the date of filing of the application i.e., 28.10.2009. The said petitioner subsequently filed a revisional application being CRR No. 1002/17 (the revision of 2017, for short), thereby challenging an order dated 04.03.2017 passed by the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Paraganas in M.Ex. Case No. 67/13, thereby directing the cashier to allow the present opposite party no. 1 to withdraw Rs. 40,000/- from cash and further directing the present petitioner "to pay Rs. 60,000/- outstanding, Rs. 17000/- arrear for the next three months." The Learned Advocate appearing on behalf of the petitioner submits that although initially the Learned Judicial Magistrate also granted payment of a monthly maintenance allowance to the petitioner's son, the same was anulled by the revisional order passed by the Learned Additional Sessions Judge as the son had attained majority at the time of passing of the order. 2. As regards the revision of 2014, the Learned Advocate for the petitioner submitted that at the time of filing of the original application under Section 125 of the Code, the daughter being the added opposite party no. 3 herein was not the claimant. The opposite party no. 1 being the mother of the added opposite party no. 3 had claimed the sum of maintenance on behalf of the latter. He submitted that this is an incurable irregularity and would disentitle the petitioner's daughter from getting any maintenance from the petitioner. Besides, the opposite party no. 3 was employed and was earning sufficiently. He submitted that the opposite party had received money several times from the petitioner. 3 had claimed the sum of maintenance on behalf of the latter. He submitted that this is an incurable irregularity and would disentitle the petitioner's daughter from getting any maintenance from the petitioner. Besides, the opposite party no. 3 was employed and was earning sufficiently. He submitted that the opposite party had received money several times from the petitioner. He contended that the opposite party no. 1 actually resided in the house of the husband/petitioner for about four years in the Andaman and Nicobar islands. The Learned Advocate further submitted that although maintenance allowance was made payable from the date of application, there was no reason recorded by the Learned Revisional Court for the same. 3. As regards the revision of 2017, the Learned Advocate appearing on behalf of the petitioner submitted that in terms of the orders passed, all payments had been made. According to him, as on the date of the passing of the impugned order in the execution case, the amount that remained payable in respect of the execution case had been duly paid. 4. The Learned Advocate appearing on behalf of the opposite party nos. 1 and 3 submitted that as regards the revision of 2014, it may be germane to note that the present petitioner was a doctor and a very high ranking government servant. He earned huge sums of money. He submitted that the petitioner never disclosed his income in the impugned proceedings. According to a reply to an application made by the opposite party no. 1 under the Right to Information Act, the petitioner's pay slip showed that he had a gross salary of Rs. 1,76,506/- as in October, 2015. The Learned Advocate submitted that the petitioner had deserted his wife because of his adulterous affair with a nurse, which he did not even deny, as would be evident from a reading of the order of the Learned original Court. He submitted that in fact the petitioner deserted the wife/opposite party no. 1 and her two children. The Learned Advocate filed an affidavit and disclosed that the opposite party no. 3 had to take a job to sustain her education. He contended that this did not mean that she was earning sufficient money to maintain herself. The Learned Advocate further submitted that that the opposite party no. 1 and her two children. The Learned Advocate filed an affidavit and disclosed that the opposite party no. 3 had to take a job to sustain her education. He contended that this did not mean that she was earning sufficient money to maintain herself. The Learned Advocate further submitted that that the opposite party no. 3 was not a party at the initial stage of filing of the application under Section 125 of the Code is a mere technicality and should not come in the way of substantial justice that is to be rendered in this case. 5. As regards the revision of 2017, the Learned Advocate for the opposite party nos. 1 and 3 submitted that as on the date of the passing of the impugned order in the execution case, there were substantial sums that remained due from the petitioner. He submitted that there is no illegality in the impugned order as the same was passed in view of the amounts of maintenance allowance that had fallen due in respect of the execution case. 6. I heard the submissions of the Learned Advocates for the petitioner and the opposite party nos. 1 and 3 and perused the revisional applications along with annexure and the affidavits filed in this case. 7. As regards the revision of 2014, it appears that it was the case of the claimants that the petitioner had deserted his wife/the opposite party no. 1, his daughter/added opposite party no. 3 and his son and left them to fend for themselves. The allegation is that this was because of an illicit affair that the petitioner was having with another lady. Although the petitioner no. 1 might have stayed in the petitioner's house for some time, the mother and the daughter clearly could not maintain the standard of living that they were used to in the husband's household. In fact, the daughter had to take up temporary jobs so as to sustain her education and according to her, this had affected her education. It further appears that the petitioner wanted to use this temporary job that the daughter was doing under compulsion as an excuse in this revision to deny her any maintenance. Moreover, despite getting an opportunity to disclose his income, the petitioner, a high ranking government servant, deliberately did not do so in the impugned proceedings. It further appears that the petitioner wanted to use this temporary job that the daughter was doing under compulsion as an excuse in this revision to deny her any maintenance. Moreover, despite getting an opportunity to disclose his income, the petitioner, a high ranking government servant, deliberately did not do so in the impugned proceedings. An adverse presumption was rightly drawn against him as regards a substantial amount as salary. It is another thing that subsequently the opposite party no. 1 could obtain the exact figure of salary that the petitioner earned from a reply to her application under the Right to Information Act. 8. The petitioner's contention before this Court that although an adult at that time, the daughter/added opposite party no. 3 did not herself claim maintenance under Section 125 of the Code, but did so through her mother, is indeed a mere technicality and cannot deny a woman maintenance as contemplated under Section 125 of the Code, as among other things, this provision comes within the sweep of Article 15 of the Constitution of India. Besides, the petitioner had allowed the said irregularity to remain there, did not object to it at the inception or soon thereafter and choose to take it up much later. 9. It is not correct to say that reasons were not recorded for awarding maintenance allowance from the date of application. In any event, such reasons are writ large on the face of the materials available. The opposite party nos. 1 and 3 have been able to make out a case of their travails to maintain their lives and dignity while trying to cope up with the desertion by the petitioner. Merely because the two were somehow able to pass their days in the interregnum period in penury or otherwise, it does not mean that they should be denied maintenance allowance from the date of application. 10. In view of the above, the impugned order dated 22.07.2014 passed by the Learned Additional Sessions Judge, 17th Court, Alipore, South 24 Paraganas in Criminal Motion No. 01/14 is upheld and the said revision is dismissed. 10. In view of the above, the impugned order dated 22.07.2014 passed by the Learned Additional Sessions Judge, 17th Court, Alipore, South 24 Paraganas in Criminal Motion No. 01/14 is upheld and the said revision is dismissed. The petitioner is directed to pay a monthly maintenance allowance to his wife and daughter at the rates as determined by the Learned Additional Sessions Judge, 17th Court, Alipore, South 24 Paraganas in Criminal Motion No. 01/14 from the date of application and pay the arrears of maintenance due till date by twelve equal monthly instalments, starting from the first week of April, 2019. 11. As regards the revision of 2017, the opposing charts of payments submitted by the adverse parties relate also to an interim order passed by this Court scaling down the consolidated amount to be paid to the two to Rs. 12000/- per month as also to an order dated 05.06.2015 passed by this Court to deposit a sum within a stipulated time. Be that as it may, after passing of the final order in CRR No. 2921 of 2014, the accounting could have to be done afresh even for the particular period. Otherwise, it does not appear that there is any illegality in the impugned order passed by the learned executing Court in respect of the revision of 2017. As such, the impugned order dated 04.03.2017 passed by the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Paraganas in M.Ex. Case No. 67/13 is not interfered with. However, if any payment is found to have been made in excess at all for such period, the same shall be adjusted with the overall dues. 12. The revisional applications being CRR No. 2921 of 2014 and CRR No. 1002 of 2017 are dismissed. However, there shall be no order as to costs. 13. A copy of the judgment may be sent down to the respective learned Courts below forthwith by Special Messengers for information and necessary action. 14. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.