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2020 DIGILAW 440 (CAL)

Shambhu Mondal v. Malina Mondal (roy)

2020-03-16

JAY SENGUPTA

body2020
JUDGMENT Jay Sengupta, J. - This is an application challenging the judgment and order dated 22.08.2016 passed by the Learned Judicial Magistrate, 2nd Court, Barrackpore, North 24-Parganas in Maintenance Case No. 106/2008. 2. Learned Counsel appearing on behalf of the husband/petitioner submitted as follows. The wife/opposite party had voluntarily left her matrimonial residence. Afterwards she filed an application under Section 125 of the Code claiming maintenance allowance for herself and for her daughter. On 13.08.2008, the Learned Magistrate was pleased to grant interim maintenance of Rs. 800/- and Rs. 400/- per month, respectively to the opposite party/wife and her daughter. On 22.08.2016, the proceeding was finally disposed of by the Learned Magistrate by directing the petitioner to pay Rs. 3500/- per month to the opposite party/wife and Rs. 2500/- per month to their daughter as monthly maintenance allowance under Section 125 of the Code. The petitioner was an employee of a company which suspended its operations with effect from 15.01.2015. As such, it was absolutely impossible for him to pay such sums of money to the opposite party and her daughter. The daughter was an adult and was residing with the wife. The petitioner was also a heart patient and the wife admitted in her evidence that he had suffered heart attack and had to undergo a bypass surgery. In 2017 the husband suffered a cerebral attack and pacemaker had to be installed. The petitioner had earlier prayed for custody of their daughter and as would be evident from the deposition of PW 1, he used to send money to the wife when he was in service. On the other hand, the opposite party/wife committed serious indiscretions including living in adultery and having adulterous relationships with at least three persons. Once she was caught red handed and the paramour had to give an undertaking. Such document was proved by him during the present proceeding. Besides, the criminal case started under Section 498A of the Penal Code by the wife was dismissed because the wife failed to prove her case. The wife herself filed a matrimonial suit seeking divorce in 2016. Since the wife herself deserted the husband without just cause, she could not claim any maintenance allowance. In fact, the wife had independent income of her own. She was working as an agent of the post-office and even carried a business of lending money. The wife herself filed a matrimonial suit seeking divorce in 2016. Since the wife herself deserted the husband without just cause, she could not claim any maintenance allowance. In fact, the wife had independent income of her own. She was working as an agent of the post-office and even carried a business of lending money. On one occasion the wife had to give a written undertaking before the Titagarh Police Station admitting that her mother had made an incorrect complaint against her husband. Reliance was placed on a decision reported in Samima Begum @ Khatun versus Sk. Abdul Rahaman @ Imanur Rahaman, (2006) 2 CalHN 753 and it was submitted that it was required to prove neglect or refusal on the part of the husband to maintain his wife in order to sustain an application under Section 125 of the Code. Reliance was placed on a decision Samita Saha versus Mohan Saha & Anr., (2011) 2 CalLJ 129 (Cal) and it was submitted that if the wife does not have sufficient ground to live separately, in view of Section 125 of the Code she would not be entitled to receive any maintenance allowance. Reliance was also placed on decisions Gita Das @ Sangita Das versus Tapas Das & Anr., (2004) 1 CalHN 237 in this regard. Reliance was also placed on a decision Lata Biswas versus Shanti Ranjan Biswas,2016 4 CalHN 569 (Cal) and it was submitted that while dealing with an application under Section 24 of the Hindu Marriage Act, this Court held that the discretion in granting alimony pendente lite was to be exercised on sound reasoning as regards whether the wife was being supported by an adulterer and whether the wife was ready and willing to go and live with her husband and the husband did not wish to keep her with him. 3. Learned Counsel appearing on behalf of the wife/opposite party submitted as follows. After the marriage of the couple in 1996, the wife was tortured mentally and physically. She was mercilessly assaulted for failing to fetch more dowry. Eventually, in the night of 06.03.2008 she was assaulted and threatened with murder. In the morning of 07.03.2008 the petitioner was compelled to take shelter at her mother''s place. After the marriage of the couple in 1996, the wife was tortured mentally and physically. She was mercilessly assaulted for failing to fetch more dowry. Eventually, in the night of 06.03.2008 she was assaulted and threatened with murder. In the morning of 07.03.2008 the petitioner was compelled to take shelter at her mother''s place. In the proceeding initiated by her under Section 125 of the Code, the husband filed a written objection, but admitted the marriage as well as the paternity of the child. In the objection, the husband falsely alleged that the wife was having illicit relationships with others, she was a habitual drunkard and was working at a microfinance company. The wife made it clear in her deposition that she was forced to sign on a paper while she was being compelled to leave her matrimonial home on 26.04.1998. Moreover, the document tendered was not marked as an exhibit. So far as the note dated 05.03.2008 purportedly executed by an alleged paramour was concerned, the same was absolutely inadmissible in evidence as no one came to prove it. The husband could not have known his signature and hence, could not have proved the purported document. Similar ought to be the fate of the purported document in respect of husband''s allegations that the wife had given loans to some others. A person could not identify the signature of a third party whom he did not know unless and until the said third party was called as a witness. As regards the acquittal of the husband under Section 498A of the Penal Code, the acquittal was due to non-availability of any witness to the proceeding. There, the wife refrained from deposing as at that point she did not want her husband to be punished and put into custody. Moreover, the lodging of general diary entries by the husband did not prove anything more than that the husband was adept in preparing formal safeguards to defend his case. The documents annexed with the supplementary affidavit of the petitioner as regards the ownership of a scooty were self-contradictory. While the vehicle stood in the name of the wife, a challan dated 19.12.2016 was issued in favour of another person. Challan in such cases were issued only to the owner of vehicle. The documents annexed with the supplementary affidavit of the petitioner as regards the ownership of a scooty were self-contradictory. While the vehicle stood in the name of the wife, a challan dated 19.12.2016 was issued in favour of another person. Challan in such cases were issued only to the owner of vehicle. Despite the orders passed by the Learned Trial Court, the petitioner was not paying any maintenance to the wife and the daughter and an execution case was pending in this regard. After being compelled to leave her matrimonial home, the wife had to bear the entire expenses for food, medicine and education of their daughter with the meagre sums provided as maintenance as per Court''s order. After a point, even that stopped. The prayer for custody of the daughter was a mere show in as much as the husband never prayed for custody of her daughter when she was a minor. The husband was trying to avoid payment of maintenance allowance to the wife and the child on unsubstantiated, baseless and false allegations. 4. I heard the submissions of the learned counsels for the parties and perused the revision petition and the affidavits filed in this case. 5. In the present case the marriage between the warring couple and the paternity of the daughter have been admitted by the petitioner/husband. 6. Now, one has to see whether there was any neglect on the part of the husband to maintain the wife and the child. While the husband/petitioner claimed that the wife/opposite party voluntarily left her matrimonial home, the latter alleged that she was compelled to leave after being severely tortured, both mentally and physically. The wife''s deposition that she was forced to sign on a paper while she was leaving her matrimonial home in 1998 under compulsion is a fair explanation for giving any such undertaking. There is no allegation that at that point she was having any adulterous relationship with anyone or that she had any other particular reason to leave the matrimonial home. At that point she was with a minor child and both were to be provided for. There is no allegation that at that point she was having any adulterous relationship with anyone or that she had any other particular reason to leave the matrimonial home. At that point she was with a minor child and both were to be provided for. Although the husband claimed that while in service, he sent sums of money to the wife and child for their maintenance, it is also a fact that an execution proceeding is pending for recovery of arrears of maintenance against the husband and it was claimed by the wife that after a point, the husband stopped paying maintenance allowance to them despite Court''s order. From the evidence and other materials on record, it appears that the wife has been able to show, prima facie, that she and her daughter were neglected by the husband. 7. The husband''s claim that he prayed for custody of the daughter is also not a complete truth. As pointed out on behalf of the wife, the husband prayed for such custody only when the girl had become a major. As such, this was merely a sham exercise undertaken by the husband to unsuccessfully try to vindicate his stand that he always cared for the dependents and, in fact, prayed for custody of the daughter at some point. 8. In respect of the allegations of cruelty, the wife gave details of the torture meted out by the petitioner/husband. It may be argued that the lodging of GD entries by the husband was a ploy to protect himself. In any event, this may not be of much help as regards the allegations of cruelty levelled against him. No cogent reason has been cited by the husband as to why the wife would leave her matrimonal home with her child so early after the marriage. His acquittal under Section 498A of the Penal Code may be relevant, but the findings may not binding in a proceeding under Section 125 of the Code. Among other things, the acquittal was granted because of lack of evidence. In fact, the wife deposed that since at that point she did not want her husband to be punished or put to jail, she did not venture to give evidence in the proceeding. 9. Among other things, the acquittal was granted because of lack of evidence. In fact, the wife deposed that since at that point she did not want her husband to be punished or put to jail, she did not venture to give evidence in the proceeding. 9. As regards the contention of the husband that the wife was not entitled to maintenance as she had adulterous relationships with several persons, it is incumbent upon the husband at least to, prima facie, show that such serious allegations levelled by him are made out. I agree with submissions of the Learned Counsel for the opposite party that a document executed by a third party cannot be proved by a person who is supposedly a stranger to the said third party. Accordingly, the purported undertaking executed by an alleged paramour of the wife could not have been proved by the petitioner/husband. On the other hand, the husband failed to produce any independent witness to substantiate his serious allegation that the wife was ''living in adultery''. 10. In a proceeding under Section 125 of the Code, evidence about matrimonial disputes and the like are not to be proved beyond reasonable doubt. Only a prima facie view is to be taken. In this regard, reliance is placed on the ratio laid down by the Hon''ble Apex Court in the case of Rajathi Versus C. Ganesan, (1999) AIR SC 2374 . 11. The decisions relied on behalf of the petitioner/husband are clearly distinguishable in the facts of the present case. No doubt, a prime facie case has to be made out by the wife for claiming maintenance. A wife has to prima facie show that she cannot maintain herself and has been neglected and/or tortured by the husband that gave her justifiable ground to stay separately. Also, she should not live in adultery with anyone. In the present case, neither the husband has been able to show that the wife had engaged in adulterous life with anyone nor could he show that the wife did not have sufficient grounds to stay away from him. On the other hand, the wife has been able to make out prima facie cases of being compelled to leave, of being neglected by the husband and of her consequent entitlement to maintenance allowance for herself and for her daughter. 12. On the other hand, the wife has been able to make out prima facie cases of being compelled to leave, of being neglected by the husband and of her consequent entitlement to maintenance allowance for herself and for her daughter. 12. On the question of the sums of maintenance allowance granted in the present case, the Learned Magistrate came to a correct conclusion as regards the earning capacity of the husband and in any event, the sums awarded are not too high in today''s context. Moreover, the husband could not sufficiently prove that the wife was having adequate independent income from regular sources. 13. In view of the above discussions, I do not find any merit in the application. Accordingly, the same is dismissed. However, there shall be no order as to costs. 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.