Calcutta High Court
Abinash Ch. Mondal vs Jyotsna Rani Mondal on 3 December, 2002
Equivalent citations: 2003CRILJ3304
ORDER Malay Kumar Basu, J.
1. This revisional application is directed against the judgment and order dated 15th November, 2000 passed by the learned Sessions Judge, Birbhum in Criminal Motion No. 35 of 2000 thereby allowing the same and setting aside the impugned order dated 14th February, 2000 passed by the learned S.D.J.M., Bolepur in Misc. Case No. 10 of 1997 and directing the petitioner to pay a sum of Rs. 1,000/- per month to the opposite party wife on account of her maintenance.
2. Being aggrieved thereby, the second party husband has preferred the present revisional application before this Court challenging the said order of the learned Sessions Judge as illegal, improper and liable to be set aside.
3. The relevant facts leading to the filing of this revisional application is stated below :--
The case of the husband petitioner was that the petitioner (the second party before the trial Court) married the present opposite party (the first party before the trial Court) about 35 years back according to Hindu rites but within a short time of that marriage, the first party left her, matrimonial home and started to live in her parental home of her own accord and never came back to the house of the present petitioner to lead a conjugal life and she rather refused to live with him and under such circumstances a salishi by the villagers was held and it was decided that the petitioner-husband would gift some landed properties to the opposite party-wife for her lifetime maintenance and accordingly this petitioner gifted by means of a registered deed of gift cultivable lands measuring about 2.92 acres in favour of the opposite party-wife (Vide Annexure 'A'). Since thereafter the opposite party went on possessing the said lands. The petitioner-husband subsequently filed a matrimonial suit for divorce and in that suit also the opposite party wife filed an application under Section 24 of the Hindu Marriage Act before the Court of the District Judge, Birbhum praying for alimony pendente lite. The learned District Judge, Birbhum after considering the materials on record and hearing both sides rejected that prayer (vide the judgment of that Court in Misc. Case No. 71 of 1987 arising out of Mat. Suit No. 29 of 1987 -- Annexure 'B').
4. Thereafter, the opposite party wife filed another application under Section 125 of the Criminal Procedure Code before the Court of the learned S.D.J.M. at Bolepur for her maintenance from the petitioner-husband but that application was also rejected by the learned Magistrate on contest on the ground that the opposite party had got sufficient means to maintain herself owing to her ownership in respect of 2.92 acres of agricultural land mentioned above. Thereafter the opposite party again preferred an application under Section 125 of the Cr.P.C. seeking an order allowing her maintenance at the rate of Rs. 1,500/- from the petitioner before that Court of the learned S.D.J.M., Bolepur on 27th January, 1997 and that was numbered as Misc. Case 10 of 1997. The learned S. D. J. M. after perusing the materials on record and the submissions of both sides in respect of that petition, dismissed that petition holding that the wife was not at all entitled to any maintenance from the petitioner-husband as she had been given a vast quantity of landed property for her own maintenance long back.
5. Being aggrieved thereby, the wife-first party preferred a revisional application before the Court of Sessions Judge, Suri being numbered as Criminal Motion 35 of 2000. After hearing the submissions of both parties, including the learned Public Prosecutor, who appeared on behalf of the State of West Bengal, the learned Sessions Judge allowed the revisional application and set aside the order of the learned S.D.J.M., Bolepur in question and directed the husband to pay a sum of Rs. 1,000/- per month to the opposite party towards her maintenance.
6. Being aggrieved thereby, the husband has preferred the present revisional application before this Court challenging the same as illegal and unsustainable.
7. It is the contention of Mr. Ghosh, learned Advocate appearing on behalf of the revisional applicant, that the learned Court below fell into grave error by overlooking the established fact that the opposite party wife has already been provided with sufficient arrangement for her maintenance throughout her life and, therefore, the question of granting a further award of maintenance is uncalled for the unjustified. He refers to the Annexure 'A', which is a certified copy of a registered deed of gift, under which his client executed and registered a deed of gift in respect of 2.92 acres of agricultural land in favour of the opposite party wife. According to Mr. Ghosh, after all this, to grant a further award of maintenance will involve double jeopardy on the part of the poor husband. It is true that a deed of gift in respect of 2.92 acres of land appears to have been executed in favour of the first party wife by the second party husband, but this gifting of landed property has not been done by virtue of any Court's order. It was their mutual and private arrangement and there is not A single scrap of paper forthcoming from any side to show the circumstances under which such a deed of gift was executed by the husband in favour of the wife. Neither the husband has cared to examine himself and state such facts on oath. On the other hand, on a perusal of the depositions of the first party wife herself (P.W. 1), I find that it is her positive statement in the examination-in-chief that her father gifted 9 bighas of land along with 17 other items of presentation including gold ornaments, to her husband at the time of her marriage and during a reconciliation effected. Through the intervention of the villagers, her husband gave life estate out of that landed property in her favour (the aforementioned landed property which (sic) by means of a deed of gift. It is further stated by her that she gave her daughter in marriage and met the marriage expenses by mortgaging the above-mentioned property and consequently she has now no means to support herself and even sometimes she has to beg food from her relations. It is conspicuous to note that such a vital statement of the first party wife has not been subjected to any cross-examination. Thus, they remaining unchallenged and practically admitted, Mr. Ghosh's contention cannot be accepted that the first party wife has sufficient means to maintain herself. Mr. Ghosh has repeatedly drawn my attention to the fact that the husband having given away so much of landed property measuring about 9 bighas by way of permanent arrangement regarding her maintenance, she will be practically estopped from claiming any further maintenance from the husband. But as I have already indicated above, that I am not impressed by this argument, because in the first place, not a single scrap of paper is forthcoming to give support to such an assertion, particularly when the lands which were originally given to the husband by the father of the first party-wife at the time of her marriage, were gifted to the wife by the husband only for her life. This gift was made by the husband as a result of such reconciliation effected by the villagers and the deposition of the P.W. 1 discussed above shows that she has parted with those lands having had to procure money (it is her case that she took loans from other people by mortgaging those lands) to meet the expenses to be incurred in her daughter's marriage ceremony. There is not an iota of evidence, either oral or documentary, to show any such condition being imposed that after such a deed of gift would be executed, the first party would be debarred from claiming any maintenance from the husband if granted by any Court under any law in future. It should be noted that this deed of gift was executed in the year 1971, whereas the present application for! maintenance was filed in the year 1997. It is not understood how Mr. Ghosh harps on his point that by virtue of this gift of landed property in the year 1971 the first party-wife should be taken to have been silenced f6r all time to come and estopped from claiming maintenance from the second party husband, even though a change in her circumstances may emerge necessitating such a move and how a Magistrate's hands can be said to be tied even though that learned Magistrate may find that the pre-conditions for applying the provisions of Section 125 of the Cr.P.C. having been fulfilled, she its entitled to get such relief for being saved from vagrancy and destitution. Moreover, even if for the sake of argument it is assumed for; a moment that originally this gift of land was effected with a view to providing maintenance for the wife, even then, it cannot be the case that such lands would continue to be productive or fruit-bearing so much so that the first party would be in a position to go on realising her maintenance out of that usufruct, and would not face any problem regarding her maintenance and the existence of that land alone will suffice for the purpose, irrespective of whether or not the possession of land is with somebody else or whether actually any crops are grown at all on the same. As a matter of fact, there is no whisper from the side of the second party-husband as to what crops used to be grown on such lands or what would be the value thereof or whether any such income, if at all, from the said land would be enough for the maintenance of the wife. The second party husband has not adduced the slightest evidence to clarify on such question.
8. Much has been argued by Mr. Ghosh on the point that the first party though claiming that she has mortgaged the landed property in question in order to procure loan, she has not filed any scrap of paper to show that any such deed of mortgage was executed by her and she having been failed to discharge her burden of proof, this story cannot be believed or accepted and as a result the said lands must be taken to have been in the possession of the first party herself. But here I am inclined to hold otherwise. It is in the evidence of P.W. 2, Tapan Mondal, that he was one of the persons who took mortgage of the lands and such transfers were done orally in view of the village custom. It sis true that such oral sale, mortgage is a misnomer in law and has no legal significance but it should not be forgotten that here we are not deciding any issue or question touching the title of any land. All that falls for determination before this Court is the question of vagrancy or destitution of the first party wife and whether she had to procure money by mortgaging her lands to other persons. If in view of the customary practices in a village, she does it, then the fact cannot be denied that although there is no written proof of the transfers of the lands in question, the actual possession thereof has been with some other person. Of course, that fact has to be substantiated from the evidence. Whether that fact is legally sanctified or has no legal basis is immaterial for the present purpose.
9. It is in the evidence of the P.W. 1 (the very first line of her cross-examination) that she had to incur an approximate amount of Rs. 40,000/- in the marriage ceremony of her daughter. This statement of the witness is not subjected to further cross-examination and, therefore, it is admitted. So this goes without saying that she had to collect funds to give her daughter in marriage. The P.W. 2 says that he along with some other villagers purchased lands from the P.W. 1 orally as per the village custom. That statement of the P.W. 2 remains unchallenged. What is more curious, in her cross-examination such positive statements have been taken from the mouth of this P.W. 2. Thus it is taken from him in his cross-examination that Plot No. 396 of Palsa mouza was purchased by him orally and was executed by the petitioner in favour of the purchasers. Even a suggestion to the contrary has not been given against such a statement made by this witness in his cross-examination. Only a general suggestion has been given to this witness, namely, that he is deposing falsely as he is a relative of the petitioner which suggestion he has denied. Therefore, the said statements remained totally uncontroverted and if that be so, the story of oral mortgage cannot but be believed or accepted. May be, in the eye of law it has got no value and the alleged mortgagees-purchasers have not got any title to the said lands by virtue of such oral purchase, but that is a different question and we are not concerned with any such question in this proceeding. Here it is to be ascertained whether the first party's allegation that she is at present not in possession of the lands in question and in view of the said statements of the P.Ws. remaining totally unchallenged, it can be safely concluded that such an allegation has been established. I am inclined to repeat that the word 'mortgage' should not be taken in its strict legal sense here and for the purpose of determining the question falling before the Court of the learned Magistrate its use should be taken in the proper perspective.
10. Mr. Ghosh seeks to rely upon a judgment passed by the learned District Judge, Birbhum in Misc. Case No. 71 of 1987 arising out of Mat. Suit No. 29 of 1987 of that Court between the same parties, wherein the learned Judge rejected a petition under Section 24 of the Hindu Marriage Act filed by the wife claiming alimony pendente lite from the opposite party husband. The learned District Judge dismissed the petition on the ground that as the petitioner wife, Jyotshna Mondal, was found to have independent source of income from her landed properties, the husband was not liable to pay any amount on account of her maintenance, This judgment (Ext. 'B') is dated 25th January, 1990 and is based upon the findings arrived at by the learned Judge from the materials on record before him, namely, the oral and documentary evidence adduced by both the parties. But in the instant case, the parameters are different. Here the clear evidence of the first party wife is that she has no income from her landed properties at present and moreover in order to meet the expenses of her daughter's marriage, she had to take loan by orally mortgaging the lands which were gifted to her by the opposite party. These statements of the wife (P.W. 1) as I have shown above, remained practically unshaken. I have also given the reason why the expression "oral mortgage" used by the witness is not to be taken in its literal or strict legal sense, but in view of the village custom as testified to by the P.W. 1 and P.W. 2, their testimonies that possession of the lands in question is now remaining with the persons from whom money has been taken, cannot be disbelieved in the face of the same remaining unshaken in their cross-examination.
11. In a petition under Section 125 of the Cr.P.C. a Court of Magistrate is not bound to accept what was found by a Civil Court in an application under Section 24 of the Hindu Marriage Act about 8/10 years ago. The two are parallel proceedings, and are guided by two different laws and a magistrate is to decide the issue taking evidence from the parties which may be adduced: by them in support of their respective allegations. The evidence as to the circumstances prevailing at the time when the judgment of that Civil Court in question was pronounced, may vary due to the long passage of time since thereafter. Hence the contention of Mr. Ghosh cannot be accepted that the findings of that Court in that Misc. Case No. 71 of 1987 should be still binding upon the first party wife to the effect that she has got sufficient income from the landed properties to maintain herself.
12. Mr. Ghosh cited a decision , wherein it has been held that a judgment by a subordinate Judge or a district Judge in exercise of the jurisdiction conferred upon him by the Hindu Marriage Act would fall within the purview of Section 41 of the Evidence Act and the decision given in the exercise of matrimonial jurisdiction would be conclusive not only against the parties to the proceeding, but also against the whole world or, in other words, such judgments would operate as judgment in rem. I do not find any reason for which it can be said that this decision is attracted in this maintenance proceeding under the Criminal Procedure Code for obvious reasons. What would serve as a judgment in rem cannot include a finding which touches upon the circumstances under which the question of vagrancy or destitution of a wife is to be determined. Such circumstances are not static or rigid but they are flexible and may vary according to the change in the situation of the subject.
13. As has been argued by Mr. Ghosh, there is a probability factor characterising the claim of the first party wife for maintenance so belatedly, after about 10 to 15 years from the time when the amicable settlement as regards her maintenance was effected. There is nothing wrong in the first party wife's filing a petition for maintenance so many years after her marriage in view of the changed facts and circumstances. The learned Advocate for the opposite party wife, has pertinently referred to a decision re-ported in 1993 Cri LJ 1183 (Bombay High Court), wherein it has been held that where the wife made the first application 4 years after their marriage and the same was dismissed, second application filed after the lapse of 17 years in which the wife's contention was that repeated requests for cohabitation were turned down and her parents also had become old and unable to maintain her and the respondent husband had, re-married and was living with three children from the second wife and was earning a sum of 20/25 thousand rupees per annum, it was held that in view of the changed facts and circumstances that second application was maintainable and was not barred by the principles of res judicata. In view of such findings, it may be felt that the leniency and compassion in the genuine, cases of application filed by the abandoned wives for maintenance are being taken by the Courts of Law now-a-day and in that view of the matter the present case having some features in common with the abovementioned case under reference, Mr. Ghosh's contention has got little merit.
14. From the oral evidence of the P.W. 1 and P.W. 2 it has been also proved that the second party husband had illicit connection with a lady named Madhumati, whom he married subsequently. This statement also is not subjected to the least challenge. In the aforesaid judgment of the Civil Court (Ext. 'B'), this has also been the finding of the learned District Judge. In view of such a fact the staying away of the first party-wife from the house of the second party-husband is to be viewed as justified and from this the conclusion can be safely drawn that the latter has neglected to maintain her. In this connection, the decision as relied upon by the learned Advocate for the opposite party wife throws light. It has been held there that where husband was living with another woman, the wife was entitled to live separately and claim maintenance even if she failed to prove her allegation of the second marriage by the husband under Section 494 of the Indian Penal Code.
15. The last ingredient of the provisions of Section 125 of the Cr.P.C. is found satisfied when the statement of the P.W. 1 remains totally unchallenged that her husband besides being the owner of a two storied house and 12 bighas of land, is a teacher of a school and has a; business, of husking machine and earns about Rs. 8,000/- per month. The amount awarded by the learned Court below being only 1/8th of such income, it sounds by no means excessive or unjust.
16. Thus, all the essential conditions for application of the provisions of Section 125 of the Cr.P.C. being fulfilled, the learned Sessions Judge was perfectly justified in allowing the maintenance petition setting aside the order of the learned S.D.J.M. in question before him. In that view of the matter, this revisional application is found without any merit and accordingly be dismissed. The impugned order of the learned Court below be upheld.
17. Interim order, if there be any, be vacated.
18. Let the L.C.R. be sent down to the learned trial Court along with a copy of this order forthwith.
19. Xerox certified copies, if applied for by any party may be supplied without delay.