Calcutta High Court (Appellete Side)
Smt. Rina Saha vs Netai Chandra Saha & Anr on 24 November, 2011
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
1
Form J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revision Jurisdiction
PRESENT:
THE HON'BLE MR JUSTICE KALIDAS MUKHERJEE
CRR NO. 1411 OF 2011
Smt. Rina Saha,
Vs.
Netai Chandra Saha & Anr.
For the Petitioner : Mr. Bhaskar Chakraborty
For the O.P.No. 1 : None Appeared
For the O.P.No. 2 : None Appeared
HEARD ON : 11.11.2011 & 18.11.2011 `
JUDGMENT ON : 24.11.2011
KALIDAS MUKHERJEE, J.:
1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure assailing the impugned judgement and order dated 21.03.2011 under section 125 Cr. P.C. passed by Learned Chief Judicial Magistrate, at Barasat, 2 North 24 Parganas in M. Case No. 113 of 2009, whereby the Learned Magistrate was pleased to reject the petition under Section 125 of the Code of Criminal Procedure.
2. The case of the petitioner, in short, is that she was married with the O.P. No.I in the year 2005 according to the Hindu rites and ceremonies. At the time of marriage, petitioner's father met all the demands for dowry made by the O.P. including cash of Rs. 50,000/- and other articles. Thereafter, the petitioner started residing in her matrimonial home, but after a few days the O.P. started committing torture upon her both mentally and physically and her condition there became miserable. After a few months, the petitioner went to a rented house and started living with her husband. On 13.09.2008 in the morning the petitioner went to her matrimonial home, but she was abused and beaten mercilessly by the inmates of the house of the O.P. The petitioner somehow managed to escape therefrom. Thereafter, the O.P. came to the rented house and started creating pressure upon the petitioner to bring cash of Rs.50,000/- from her parents or from the brother. At last the petitioner was driven out from the rented house by the O.P., the sister- in-law and brother-in-law. The petitioner lodged G.D.E. Entry with Madhyamgram P.S. vide No. 997 dated 14.09.08. The petitioner also filed a case under Section 498A/406 IPC 3 before Ld. C.J.M. Barasat. The petitioner has no source of income. The O.P./husband is an employee of Health Department of Kolkata Municipal Corporation earning Rs. 18,000/- per month. He has also landed property and has no liability.
3. The O.P. contested the case before the Learned Magistrate.
After hearing both sides, the learned Magistrate dismissed the case holding, inter alia, that the contention of the petitioner that she was driven out by the O.P. was not acceptable and there was no compelling ground or any situation which compelled her to reside separately from the O.P. The learned Magistrate further held that from the evidence it appeared that the petitioner had some income of her own. The Learned Magistrate held that the allegation of negligence and refusal to maintain the petitioner has not been proved.
4. None appeared on behalf of the O.P. in this revisional application.
5. The Learned Counsel appearing for the petitioner submits that the Learned Magistrate was not justified in holding that the contention of negligence and refusal to maintain the petitioner has not been proved; or that the petitioner had some income of her own or that there was no ground for separate living of the petitioner from the O.P. The Learned counsel has referred to and cited the decisions reported in 4 AIR 1981 SC 1972 [Sirajmohmedkhan Janmohamadkhan, Appellant vs. Hafizunnisa Yasinkhan and Anr., Respondents]; (2008)1 SCC (Cri) 356 [Chaturbhuj, Appellant vs. Sita Bai, Respondent]; 2010(2) Crimes 74 (Chhatt.) [Smt. Manjari Dewangan, Applicant vs. Hemant Dewangan, Non-applicant];
6. PW I has stated in her evidence that she was married with the O.P. in the year 2005 according to Hindu rites and Customs and after marriage she went to reside in her matrimonial home and stayed with O.P. as husband and wife; the O.P. started using filthy language and misbehaved with her; as per the demand of the O.P. her elder brother gave all the articles in marriage; in her matrimonial home she was made to work like a maid servant which was unbearable; she started residing in a rented accommodation where the O.P. came and started creating pressure upon her to bring money. It has been stated by PW I that on 13.09.2008 she went to find her husband in matrimonial home, but then her mother-in-law used abusive language against her and then she came back to the rented accommodation. It has been stated that the O.P. demanded Rs. 50,000/-. It is in the evidence that on 14.09.08 she lodged a G.D.E. Entry with Madhyamgram P.S.; that the O.P. did not take any information about her and did not give any money towards her maintenance. It is in her evidence that the O.P. 5 is an employee of Health Department of Kolkata Municipal Corporation getting the monthly salary of Rs. 18,000/-.
7. PW2 has stated that the O.P. physically assaulted the petitioner and demanded money and in the year 2005 the O.P. drove out the petitioner from the rented accommodation. It is in the evidence of PW2 that the O.P. works in Kolkata Municipal Corporation and at the time of marriage the O.P. stated that he used to draw the salary of Rs. 15,000-16,000/- per month. PW2 has stated that petitioner has no income of her own and she stayed in his house.
8. O.P.W. 1 has stated that he used to reside at Madhyamgram with the petitioner in the house purchased by him by incurring loan. In the cross-examination he has stated that the petitioner stayed in his house for two months and thereafter she went to a rented accommodation on 01.10.07 and the petitioner left the tenanted premises on 01.08.08. O.P.W. 1 has stated that at the time of marriage his salary was Rs. 17,000/- and odd per month.
9. PW2 has stated that the O.P. was advised to stay in a separate accommodation and, as such, the O.P. alongwith his wife went to separate accommodation on 01.10.2000.; One day his mother went to the said tenanted accommodation of the O.P. and found his house under lock and key. He has stated that the petitioner is authorised dealer of R.C.M. 6
10. In the cross-examination P.W. 2 has stated that when the petitioner used to reside in their house she used to do the cooking.
11. In the case of Sirajmohmedkhan Janmohamadkhan, Appellant vs. Hafizunnisa Yasinkhan and Anr.(supra) it has been held in para 20 as follows ;-
"20. A clear perusal of this provision mqanifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending Provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband's parents or relations, such apprehension also would be manifestly a reasonable justification for the wife's refusal to life with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the 7 Amending provision which is, as already indicated, by no means exhaustive."
12. In the case of Chaturbhuj, Appellant vs. Sita Bai, Respondent (supra) it has been held in para 7 as follows;-
"7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent wife was earning some income. That is not sufficient to rule out application of Section 125 Cr. P.C. It has to be established that with the amount she earned the respondent wife was able to maintain herself."
13. In the case of Smt. Manjari Dewangan, Applicant vs. Hemant Dewangan, Non-applicant (supra) it has been stated in para 7 as follows ;-
"7. ...... From the evidence on record what emerges is that the applicant wife is unable to maintain herself.
She is living separately for sufficient reason that is her subjection to cruelty by her husband and moreover as categorically stated by learned counsel for the non-
applicant/ husband before this Court the non-applicant/husband is not interested to keep her with him and a divorce petition has also been 8 filed by him before the competent Court."
14. From the evidence on record it is clear that PWI was subjected to torture in her matrimonial home for which she was compelled to reside in the tenanted house where the O.P. also resided with her. It is also in evidence that subsequently the O.P. and other members of his family came to the rented house and drove her out. Evidently, therefore, the petitioner was thus compelled to reside separately in a rented house because of such torture and ill-treatment.
Learned Magistrate, therefore, was not justified in holding that there was no reasonable ground to live separately. This separate living of the petitioner in a rented house coupled with other circumstances regarding ill-treatment and cruelty, are sufficient to prove refusal and negligence of the O.P. to maintain the petitioner.
15. In the case of Sirajmohmedkhan Janmohamadkhan, Appellant vs. Hafizunnisa Yasinkhan and Anr.(supra) the facts of the case are similar with those of the instant one. P.W. I in her cross-examination has stated it to be true that the O.P. filed divorce suit against her prior to this case. The O.P.W.1 has also stated in his examination - in-chief that he filed a divorce suit against the petitioner on the ground of cruelty. In the case of Smt. Manjari Dewangan, Applicant vs. 9 Hemant Dewangan, Non-applicant (supra)the petitioner was living separately for sufficient cause as she was subjected to cruelty and the respondent/husband had filed a suit for divorce. On this aspect the facts of the instant case are similar with those of the aforesaid case. In the aforesaid case the petition under Section 125 Cr. P.C. was dismissed and it was allowed by the Hon'ble High Court at Chattisgarh.
16. In the instant case, P.W. 1 has stated that O.P. is an employee of KMC drawing the Salary of Rs. 18,000/- per month.
O.P.W.1 has stated that at the time of his marriage his salary was Rs. 17,000/- and odd per month. It is in the evidence of PW 1 that she is involved in R.C.M. distributor concerned, but she does not know anything about the matter.
In the case of Chaturbhuj vs. Sita Bai it has held that the fact of the wife earning some income was not sufficient to rule out the application under Section 125 Cr. P.C. and that it had to be established that with the amount she earned the respondent wife was able to maintain herself. In the instant case there is nothing to show the actual income of the petitioner from the R.C.M. distributorship. In view of the principle laid down in the aforesaid cases I find that the statement of PWI that she is involved in R.C.M. distributorship is not sufficient to hold that she has the means to maintain herself.10
17. On perusal of the evidence on record and having regard to the settled principles of law as discussed above I find that the petitioner is unable to maintain herself and she was neglected by the O.P. and she was not given maintenance by her husband. It is also clear that the O.P. has sufficient means to maintain the petitioner.
18. Under the circumstances the order impugned is set aside.
19. The O.P. No.1 husband is directed to pay maintenance @ Rs.
1000/- per month to the petitioner from the date of this order.
20. The application is thus disposed of.
21. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. )