Calcutta High Court (Appellete Side)
Gorachand Roy vs Papia Roy & Anr on 5 June, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar CRR 2019 of 2014 with CRR 2020 of 2014 with CRR 1103 of 2014 Gorachand Roy
-vs.-
Papia Roy & Anr.
For the Petitioner : Mr. Uday Sankar Chattopadhyay Mr. Santanu Maji For the Opposite Party : Mr. Arup C. Chatterjee Mr. Kamakshyay Mukhopadhyay Mr. Asit Baran Ghosh Heard on : 20.01.2015 & 17.02.2015 Judgement on : 05/06/2015 Subrata Talukdar, J.: In all the above noted CRRs the parties are common and arise out of the same cause of action. The husband is the petitioner in all the CRRs. The wife and the minor son of the parties are arrayed as the Opposite Parties Nos. 1 and 2 (for short OP 1 and 2).
By consent of the parties all the three CRRs are taken up for hearing analogously and disposed of by this common judgment.
Arguing CRR 2019 of 2014 first, Sri Uday Sankar Chattopadhyay, Ld. Counsel for the petitioner-husband submits that the petitioner filed Matrimonial Suit (for short MAT Suit) No. 220 of 2003 against the present OP1 for a decree of dissolution of marriage by divorce. The said MAT Suit was finally renumbered as 5 of 2005 and transferred to the Ld. 2nd Additional Fast Track Court, Burdwan for disposal.
Sri Chattopadhyay submits that during the pendency of the MAT Suit No. 220 of 2003 on an application filed by the OP1-wife under Section 125 CrPC by order dated 10th September, 2008, the Ld. Chief Judicial Magistrate, Burdwan was pleased to direct payment of maintenance of Rs. 2000/- for OP1-wife and Rs. 1500/- for the OP2- minor son and thereby disposed of Misc. Case No. 239 of 2004.
Sri Chattopadhyay further submits that during the pendency of the said MAT Suit in April, 2010 the disputes between the parties were compromised and they started living together as husband and wife with effect from April, 2010 and continued to live together till December, 2012. The proof of the compromise and the joint living in the same mess is evident from the several orders passed by the Ld. 2nd Additional Fast Track Court, Burdwan in the MAT Suit.
Sri Chattopadhyay particularly takes this Court to orders dated 7th April, 2010 and 14th May, 2010 by which the Ld. 2nd Additional Fast Track Court was pleased to respectively take notice of the compromise and therefore adjourned the matter as well as took notice of the fact that both the parties have filed an application that they are living peacefully and the MAT Suit will be withdrawn. Thereafter by order dated 10th November, 2010 the MAT Suit was dismissed as both the parties were found absent on repeated calls.
Sri Chattopadhyay submits that soon after the parties separated in December, 2012, on 28th December, 2012 the OP1-wife filed three Misc. Execution Cases before Ld. CJM, Burdwan including Misc. Execution Case No. 74 of 2012 which is assailed in the present application. By judgment and order dated 7th October, 2013 the Ld. CJM, Burdwan was pleased to direct the petitioner to pay the amount of Rs. 42,000/- towards maintenance to both the OPs covering the period January, 2012 to December, 2012 being the arrear amount. By order dated 12th November, 2013 the Ld. CJM, Burdwan was pleased to issue distress warrant against the petitioner.
Challenging the aforementioned order of the Ld. CJM, Burdwan the petitioner-husband approached the Ld. Sessions Court, Burdwan by filing Criminal Motion No. 105 of 2013. By the judgment and order impugned dated 30th January, 2014 the Ld. Sessions Court, Burdwan was pleased to dismiss the revisional application. Sri Chattopadhyay argues that the order of dismissal by the Ld. Sessions Court is patently bad for the following reasons:-
a) That both the Ld. Courts failed to take notice of the fact that pursuant to the order of maintenance dated 10th September, 2008 the petitioner-husband has regularly remitted the maintenance for the years 2004 to 2009. The petitioner-
husband has also complied with the payment of alimony pendentilite in the MAT Suit for the years 2005 to 2009.
b) Taking this Court to the orders of the Ld. 2nd Additional Fast Track Court, Burdwan Sri Chattopadhyay points out that on repeated occasions the matter was adjourned before the Ld. Trial Court on the ground that both the parties had compromised their disputes and are living together in the matrimonial home. Therefore, during the period January, 2012 to December, 2012 when maintenance was claimed vide Misc. Execution Case No. 74 of 2012, admittedly the OP1-wife and the OP2-minor son were being looked after by the petitioner- husband. Therefore, according to Sri Chattopadhyay, the conditions precedent for applying Section 125 CrPC were absent during the period in question when the needs of the OPs was being looked after by the petitioner-husband and hence there could be no basis for filing Misc. Execution Case No. 74 of 2012.
c) Both the Ld. CJM, Burdwan and the Ld. Revisionist Court committed an error of law by failing to take notice of the conduct of the parties as recorded in the proceedings in the MAT Suit. Therefore, there could be no further requirement of filing a joint affidavit explaining the reconciliation between the parties. The Ld. Revisionist Court therefore fell into patent error by upholding the order of the Ld. CJM in Misc. Execution Case No. 74 of 2012. According to Ld. Counsel, the question of paying maintenance arises only when the petitioner is unable to explain the fact that he failed to look after his wife and son during the relevant period.
In CRR 2020 of 2014 Sri Chattopadhyay submits that on the self-same facts the Ld. CJM was pleased to allow the second Misc. Execution Case No. 76 of 2012 filed by the OP1-wife. By the order dated 28th December, 2012 the Ld. CJM, Burdwan was pleased to direct the petitioner-husband to pay the maintenance amount of Rs. 42,000/- pertaining to the period between July, 2011 to December, 2011 and by the subsequent orders dated 7th October, 2013 and 12th November, 2013 the petitioner-husband was directed to pay the arrear amount failing which distress warrant was issued.
By the judgment and order dated 30th January, 2014 the Ld. Sessions Court was pleased to dismiss the revision petition filed by the petitioner-husband being Criminal Motion No. 105 of 2013 and therefore affirmed the judgment and order of the Ld. CJM in Misc. Execution Case No. 76 of 2012.
In CRR 1103 of 2014 on the self-same facts the OP1-wife filed Misc. Execution Case No. 75 of 2012 and by order dated 28th December, 2012 the Ld. CJM, Burdwan was pleased to award maintenance of Rs. 35,000/- for the period March, 2012 to December, 2012. By similar orders dated 7th October, 2013 and 12th November, 2013 the Ld. CJM, Burdwan was pleased to direct the petitioner- husband to pay the arrear amount failing which distress warrant was issued. The challenge to the order of the Ld. CJM, Burdwan by the petitioner-husband in Criminal Motion No. 106 of 2013 stood dismissed and the order of the Ld. CJM in Misc. Execution Case No. 75 of 2012 affirmed by the Ld. Revisionist Court.
Relying on the self-same arguments as advanced in CRR 2019 of 2014 and noticed above in this judgment, Sri Chattopadhyay submits that there was no requirement on the part of the petitioner- husband to pay the aforesaid sums of money towards maintenance and pertaining to the period during which the parties admittedly stayed together as husband and wife. In addition to the abovenoted issue Sri Chattopadhyay also raises the point of limitation and submits that each of the execution cases were filed in the year 2012 and pertained to claim of maintenance for the years 2010 and 2011. However, only in Misc. Execution Case No. 74 of 2012 the claim to execution was for the period between January, 2012 to December, 2012. Therefore, for the period March, 2010 to December, 2010 and January, 2011 to December, 2011 the Misc. Execution Case No. 75 of 2012 and 76 of 2012, being respectively filed one year after the alleged accrual of the cause-of-action are not maintainable. According to Sri Chattopadhyay, such position on limitation shall appear from a plain reading of Section 125 CrPC.
Per contra, Sri Arup Chatterjee, Ld. Counsel for the OPs submits that no maintenance was received by the wife after the year 2008. Admittedly, the wife was not in the same mess with the petitioner- husband between the period 2008 to 2010. Therefore, the OP1-wife had the right to claim maintenance from the petitioner-husband in her favour as well as on behalf of their minor son, OP2.
Arguing that there is no limitation to filing a claim for maintenance which is in the nature of a continuing liability, Sri Chatterjee argues that as long as there is a sufficient cause to claim maintenance, the OP1-wife had the legal right to file the execution applications.
In reply to the submission of Sri Chatterjee, Sri Chattopadhyay clarifies that the wife had filed repeated Misc. Execution cases in the past between the years 2004 to 2008 and strenuously submits that between November, 2005 to June, 2009 out of a total sum of Rs. 1, 04, 713/-, a sum of Rs. 98,281/- has been paid in connection with both the Misc. Cases and the MAT Suit and the balance payable by the petitioner-husband is only 6,432/-.
Sri Chattopadhaya further submits that such balance amount has been duly attested to by the OP1-wife before the Ld. 2nd Fast Track Court, Burdwan on the 25th of August, 2009. Thereafter on the 29th of January, 2010 the OP1-wife admittedly received the balance amount of Rs. 6000/- from the petitioner-husband and has acknowledged receipt of the same on a revenue stamp. Sri Chattopadhyay submits that the petitioner-husband also took steps for the medical treatment of the OP1-wife from time to time including her admission to a nursing home and produces documents in support thereof.
Having heard the parties and on examination of the documents on record this Court finds that it is relevant to refer to the ordersheets in the MAT Suit No. 5 of 2005 commencing from Order No. 89 dated 29th January, 2010. By order dated 29th January, 2010 the Ld. Trial Court was pleased to allow the filing of the money receipt for Rs. 6000/- by the petitioner-husband and fixed 26th February, 2010 for filing additional written objection by the OP1-wife to the amended plaint filed by the husband.
By Order No. 91 dated 7th April, 2010 both the parties filed their hazira and date was fixed for pre-emptory hearing. It is relevant to reproduce Order No. 91 in its entirety:-
"Petitioner files hazira and o.p. files hazira too. Today is fixed for P. Hearing of the matter. Ld. Counsels for both- sides along with their parties appear before the Ld. Court. Record is taken up. At this stage a joint petition is filed by both the petitioner and the o.p. praying for fixing another date on the ground mentioned that a talk of compromise behaviour the parties is going on.
Hd. perused. Considering the circumstance prayer for adjournment of the parties is allowed. Fix 22.4.2010 for p.hearing."
Thereafter, by Order No. 92 dated 22nd April, 2010 it was, inter alia, recorded as follows:-
"Petitioner and the o.p. file haziras through their ld Counsels. Today is fix p.hearing. Record is taken up in presence of the ld. Advocates for both sides. At this stage ld counsels for sides submits before the Court that the relation between the petitioner and the o.p. in developing day by day and to that effect another date may kindly be fixed by the Court.
Hd. considering the circumstance fix 03.5.10 for p.hearing/further order."
By Order No. 94 dated 14th May, 2010 and also by Order No. 95 dated 27th May, 2010 it was recorded as follows:-
"Petitioner and the opposite party file their haziras through their ld counsels. Both the petitioner and the op turned up before this court. Their submit before the ld Court that they are staying together and the case will be withdrawn shortly and to that effect another short date may kindly be fixed as submitted also by their ld counsels.
Hd. considering the circumstance fix 27.5.2010 for another order."
This Court notices that on several dates thereafter prayer for adjournment was allowed in presence of Ld. Counsel for OP-wife since the parties did not take steps for peremptory hearing of the suit in view of the admitted fact that they were living together as husband and wife. Finally by Order No. 103 dated 10th November, 2010 since no steps were being taken the MAT Suit stood dismissed.
Next, this Court observes from the pleadings in Misc. Execution Case No. 75 of 2012 filed by the OP1-wife that there is no whisper of the fact that the parties were staying together as husband and wife. In his written objection to Misc. Execution Case No. 75 of 2012 the petitioner-husband took the point that the parties were living together since April, 2010 and therefore there was no reason to claim maintenance for the said period. Significantly, from the rejoinder filed it appears that there is no specific denial by the OP1-wife that the parties did not stay together as husband and wife for the period between April, 2010 to December, 2012.
From a perusal of the order dated 7th October, 2013 in Misc. Execution Case No. 75 of 2012 it does not appear that the Ld. Magistrate had occasion to consider the period during which the parties settled their disputes and stayed together amicably as husband and wife. The Ld. CJM was only pleased to consider the legal obligation of the petitioner-husband to maintain the OPs and therefore directed to pay the maintenance.
Turning to the judgment of the Ld. Revisionist Court it is noticed that the petitioner-husband was reminded of his duty to intimate the Ld. CJM, Burdwan by swearing an affidavit that he and his wife are living together and both the OPs are being maintained by him. Ld. Revisionist Court was pleased to come to the finding that in the absence of any petition filed by the spouses in the MAT Suit with regard to the resumption of joint mess by the parties, it cannot be held that the OPs are not entitled to any maintenance.
In the considered view of this Court the records of the order sheets before the Ld. Additional Fast Track Court speak for themselves. From the order sheets, which have been quoted in this judgment (supra), it transpires that both the parties approached the MAT Court in a manner not to proceed with the peremptory hearing on the ground that they have compromised their disputes.
It will appear from the order sheets that both the parties appeared before the MAT Court and made their submissions to the effect that the peremptory hearing may be postponed and the Court may take cognizance of the fact that both of them are staying together in the matrimonial home. Ultimately due to such joint living no need was felt to proceed with the MAT Suit which stood dismissed.
This Court also notices the observations by the Ld. Revisionist Court that both the parties should have intimated the Ld. CJM, Burdwan on affidavit of the fact that they are living together, is answered in the form of the written objection filed by the petitioner- husband to the execution case whereby at paragraph 3 it is specifically pleaded on affidavit that since April, 2010 the parties along with their son have resumed conjugal life having settled their disputes. The said written objection which appears at page 34 of CRR 2019 of 2014 has been affirmed by way of affidavit on 15th May, 2013.
Again the attention of this Court is drawn to paragraph 3 of the said affidavit in which the petitioner-husband has stated to the effect that:-
"It is only about a few months ago that the petitioner has again left this opposite party without any justifiable reason and the petitioner has thereafter filed the consecutive execution cases on the same date."
At paragraph 4 of the said objection it has been pleaded by the husband as follows:-
"4. Having resumed conjugal relationship, alleged cause of action and the order of the Miscellaneous Case for execution of which this proceeding purported to have been instituted, became non est and therefore there remained no order for any execution proceeding.
5. That the instant execution proceeding is hit by the Proviso of Sub Section 3 of Section 125 Cr.P.C.
6. Moreover the petitioner for self or on behalf of the son cannot claim maintenance for the period which she stayed along with this opposite party in the Matrimonial Home being fully maintained by this opposite party."
This Court cannot but notice the mandate of Section 125 CrPC which directs that maintenance is payable only if the person fails to maintain his wife without sufficient cause. In the facts of the present case this Court is satisfied that the period during which the wife has claimed maintenance in the three execution cases corresponds to the period when, admittedly from the records it transpires that the parties were living together in joint mess along with the minor son raising the presumption in law that the petitioner-husband was maintaining the OPs.
Therefore, this Court is satisfied that both the Ld. CJM, Burdwan and the Ld. Sessions Court did not consider the facts on the ground in their proper perspective. In the absence of a satisfactory explanation/reply from the OP1-wife distinguishing the claim made by the petitioner-husband in his objection that during the period in issue, i.e. April, 2010 to December, 2012 the parties did resolve their disputes and stayed together as a family, the wife is precluded from claiming for the aforementioned period.
This Court is also satisfied that the claim to maintenance by the OP1-wife in her petition is bald and in suppression of the relevant facts particularly, the proceedings in the MAT Suit. No further proof of the intention of the parties can be necessary apart from what has been recorded by the Ld. Additional Fast Track Court in the MAT Suit. Therefore, to the mind of this Court the further requirement of intimating the Ld. CJM, Burdwan by way of a joint affidavit by the parties is superfluous and, cannot supersede the order sheets recorded by the Ld. Matrimonial Court.
For the above reasons CRR 2019 of 2014, CRR 2020 of 2014 and CRR 1103 of 2014 stand allowed.
The order dated 30th January, 2014 impugned in the three CRRs of the Ld. Sessions Court in Criminal Motion No. 103 of 2013, 105 of 2013 and 106 of 2013 stands quashed. Consequently, the orders dated 7th October, 2013 and 12th November and 2013 passed by the Ld. CJM, Burdwan in Misc. Execution Case Nos. 74, 75 and 76 of 2012 also stand quashed.
However, this Court is also of the opinion that the claim to maintenance by the wife is a continuing liability of the petitioner- husband. This order will not therefore prevent the OP-wife from claiming maintenance in accordance with law upon satisfactory proof before the Ld. Magistrate of the period during which no maintenance was paid and the parties lived in separate mess.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)