Calcutta High Court (Appellete Side)
Habibar Rahaman Sk vs The State Of West Bengal & Anr on 23 August, 2016
1
C.R.R. 916 OF 2013
3.08.16.
ab Sl. No. 01 Habibar Rahaman Sk Vs The State of West Bengal & Anr.
Mr. Prosenjit Mukherjee ... For the Petitioner.
None appeared- for the opposite parties.
This revisional application has been filed by petitioner challenging the judgment and order dated 04.12.2012 (hereinafter called as impugned judgment) passed by learned Additional Sessions Judge, First Fast Track Court, Diamond Harbour, South 24 Parganas in Criminal Motion No. 88 of 2010.
Said Criminal Motion was filed by opposite party no. 2 challenging the judgment and order dated 12.07.2010 passed by learned Judicial Magistrate, 1st Court, Diamond Harbour in M. Case No. 309/2004 under Section 125 of the Code of Criminal Procedure (in short Cr.P.C.) by the opposite party no. 2 Rina Khatoon.
Admitted facts are that both the petitioner and opposite party no. 2 are the Muslims and they were married and out of their wedlock two daughters were born. During subsistence of their marital relationship the wife Rina Khatoon filed M. Case No. 81 of 1996 under Section 125, Cr.P.C. against her husband for getting maintenance allowance for herself and her two minor daughters. Said case was disposed of on compromise on 22.06.1999 under order of learned Sub-Divisional Judicial Magistrate, Diamond Harbour.
2In that compromise the opposite party no. 2 of this case as petitioner received Rs.20,000/- and one pair gold earrings from opposite party who is the petitioner in this case and mentioned that she would not claim maintenance in future for herself or her children from her husband and she would not file any case under the provision of The Muslim Women (Protection of Rights on Divorce) Act, 1986.
During pendency of that case present petitioner Habibar Rahaman Sk. divorced the opposite party no. 2 pronouncing Talaq. The divorced woman Rina Khatoon subsequently filed case no. M. 311 of 2004 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and that case was heard ex parte and disposed of on 26.04.2006 in the Court of learned Additional Chief Judicial Magistrate, Diamond Harbour. In that order present petitioner as opposite party in that case was directed to pay Rs.30,000/- as the amount of Denmohar and Rs.3000/- as maintenance for 'iddat' period of the present opposite party no. 2 as petitioner in that case. Said part of the order was executed with full satisfaction. In the said order dated 26.04.2006 present petitioner was also directed to pay monthly maintenance of Rs.1000/- to the petitioner (opposite party no. 2 herein) till she remarries.
Said opposite party no. 2 Rina Khatoon filed second application under Section 125, Cr.P.C. being case no. M. 309/2004 against the present petitioner claiming maintenance for herself and her two minor daughters. Said case was decided on contest in the 1st Court of learned Judicial Magistrate, Diamond Harbour delivering judgment dated 12.07.2010. In that judgment claim of the petitioner (opposite party no. 2 herein) for getting maintenance allowance was dismissed on the ground that one order for her getting monthly maintenance 3 allowance of Rs.1000/- as per order dated 26.04.2006 in M. 311 of 2004 (supra) was in force which fact was suppressed by her in the proceedings of M. 309/2004 under Section 125, Cr.P.C. In that judgment of M. 309/2004 learned Magistrate allowed petitioner's prayer for getting maintenance allowance for her two daughters at the rate of Rs.500/- each per month against the present petitioner who is the father of said two children . Said judgment was not challenged by the present petitioner but the opposite party no. 2 challenged that judgment filing Criminal Motion No. 88 of 2010 and in that case the impugned judgment has been passed.
At the time of hearing Mr. Mukherjee, learned counsel for the petitioner assailed the impugned judgment submitting that the order passed by learned Magistrate in M. 309/2004 is based on reasoning and legal principles but in the impugned judgment learned Additional Sessions Judge did not consider that order properly. He pointed out that the prayer of Rina Khatoon for her maintenance allowance under Section 125, Cr.P.C. was refused by learned Magistrate on the ground that she has been enjoying an order of monthly maintenance allowance awarded in M. 311/2004 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 but in the impugned judgment learned Magistrate was directed to reconsider the prayer of maintenance allowance of the petitioner under Section 125, Cr.P.C. which is apparently illegal. He further submitted that in the judgment dated 12.07.2010 in M. 309/2014 learned Magistrate considered income of the present petitioner Habibar Rahaman Sk. and his liabilities towards his second wife and two sons of his second wedlock also in addition to his liability towards his divorced first wife and her two children and passed his reasoned order awarding reasoned amount of maintenance of the two daughters of petitioner 4 which was not appreciated in the impugned judgment illegally on the basis of surmise and conjecture. He further submitted that the eldest daughter of the petitioner and Rina Khatoon has already been married and so this petitioner may be exonerated from payment of any maintenance allowance for her.
Having gone through the copy of judgment passed by learned Magistrate in M. 309/2014 it appears that learned Magistrate considered some certified copies of orders passed earlier in some judicial proceedings between the parties as said judicial proceedings are admitted facts without marking those certified copies as exhibits. But pointing out such matter in the impugned judgment learned Additional Sessions Judge made remark, "But unfortunately Ld. Court below has made adventure to rely on such unexhibited documents and has made its decision to refuse the prayer of maintenance allowance of the petitioner". Considering the two judgments I am of the view that learned Magistrate considered certified copies of not only public documents but judicial orders in the proceedings between the parties in connection with claim of Rina Khatoon either as married wife or as divorced Muslim woman against her husband/ex-husband. However, said judicial proceedings are admitted by the parties. Needless to say that admitted facts need not be proved. Consideration of the certified copies of judicial orders of admitted proceedings between the same parties in an another judicial proceeding is not liable to be deprecated even the documents are not marked exhibits. At best it can be said that had those certified copies been marked exhibits the same would be part of record and in that view of the matter it might have been considered as a very simple curable irregularity which might have been cured by learned Additional Sessions Judge without referring to such incident as a 5 ground for giving direction to the learned Magistrate for reconsideration of the prayer of petitioner for maintenance allowance under Section 125, Cr.P.C.
In the impugned judgment learned Additional Sessions Judge considered the amount awarded for maintenance of two daughters of the present petitioner as too meagre comparing to the price index of the essential articles of daily living, clothing as well as cost of education which factors were not kept in mind of the learned Magistrate and on that ground the amount of maintenance of said two children was enhanced from Rs.500/- to Rs.1,500/-. In my view, fixation of any amount of maintenance allowance should be made in consideration of the social status of the parties, real need of the claimant, existing liability of the person liable to pay maintenance and financial capacity of that person to pay the amount. The provision under Section 125, Cr.P.C. is a social legislation and not a penal legislation. In my view, learned Magistrate passed a very reasoned judgment on 12.07.2010 in M. 311/2004 which is supported by legal principles leaving no room in reality to discard it. As such, I cannot concur with the findings of learned Additional Sessions Judge made in the impugned judgment.
As a result, this revisional application is allowed. The impugned judgment passed on 04.12.2012 in Criminal Motion No. 88/2010 is set aside and the judgment dated 12.07.2010 passed by learned Judicial Magistrate in case no. M. 309/04 is sustained. Interim orders passed earlier stand vacated. Petitioner may take appropriate steps, in the Court of learned Magistrate, if so advised relating to his claim regarding marriage of his first daughter.
Let copy of this order be communicated to the Court of learned Additional Sessions Judge, First Fast Track Court, Diamond Harbour 6 and to the 1st Court of learned Judicial Magistrate, Diamond Harbour from the department.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties or their advocates expeditiously, in compliance of usual legal formalities.
(Sankar Acharyya, J.)