Calcutta High Court
Sushil Mondal vs Shibdas Patra @ Shibu on 15 December, 2004
Equivalent citations: 2005(3)CHN534
JUDGMENT Pravendu Narayan Sinha, J.
1. As the facts and points of law involved in these revisional applications are identical, I intend to dispose of both the revisional applications by this common judgment and order.
2. Facts of the case as it appears from the contents of the revisional applications are that, Sravani Patra (since deceased) was married with Shibdas Patra (petitioner of C. R. R. No. 748/03) on 8.2.88. Out of their wedlock a male child was born to the couple namely Snehasis Patra @ Suchasis Patra. Subsequently, Sravani being unable to bear the torture of her husband and other in-laws committed suicide on 31.10.91 and on the basis of her unnatural death a police case was started which ended in submission of chargesheet. The trial that followed in Sessions Trial No. 8/July/95, the husband Shibdas Patra @ Shibu was convicted and he preferred an appeal and was enlarged on bail during pendency of the appeal. The child born to Shibdas and Sravani was then aged two years when Sravani committed suicide and the said child was taken to his maternal grandfather's house (petitioner of C. R. R. No. 961/03) and since then the said child is being maintained in his maternal grandfather's house. The father of the child namely Shibdas Patra did not take any information of his son nor sent any money for the maintenance of his son. The maternal grandfather of the child Sushil Mondal has retired from service in 1997 and he finds it difficult to maintain the said child. Accordingly, he filed an application under Section 125 of Criminal Procedure Code, against the father which was registered as Misc. Case No. 82 of 2002. In the said case Sushil Mondal submitted prayer for interim maintenance of the child. After hearing the contention of both parties the learned Judicial Magistrate, 7th Court, Howrah allowed the prayer for interim maintenance by order dated 3.3.2003 and directed that the father Shibdas Patra shall pay interim maintenance @ Rs. 800/- per month to his minor son from the date of the order.
3. Being aggrieved by and dissatisfied with, the order both Sushil Mondal and the father Shibdas Patra have filed two separate revisional applications and the revisional application filed by Shibdas Patra is C. R. R. No. 748/03 and the revisional application filed by the maternal grand father of the child namely Sushil Mondal is C. R. R. No. 961/03.
4. Ms. Pratima Mishra, learned Advocate for the petitioner of C. R. R. No. 748/03 contended that the petitioner being father has already filed an application for custody of his minor son Snehasis Patra and it has been registered as Act VIII Case No. 23 of 2002 (Act VIII of 1890). The said case for custody of the child is pending and being father and natural guardian he is entitled to take custody of his minor son. If the minor son is given to his custody he is competent to maintain his son and no question for awarding maintenance arises. The learned Magistrate did not assess the income of the father properly and also did not consider whether the father refused to pay maintenance to his own minor son. There was nothing before the learned Magistrate to reveal that this petitioner being father refused to pay maintenance to his own son. When the case for custody of his minor son is pending the proceeding under Section 125 of Criminal Procedure Code for maintenance of the said, minor son should be stayed. Learned Magistrate acted illegally by not staying the proceeding under Section 125 of Criminal Procedure Code and also granting interim maintenance in favour of the maternal grandfather for the maintenance of minor son.
5. Mr. Asraf Ali, learned Advocate for the petitioner of C. R. R. No. 961/03 contended that the order of the learned Magistrate is not in accordance with law. During pendency of a case in Civil Court for custody of the child, the proceeding under Section 125 of Criminal Procedure Code, cannot be stayed as this section was enacted for providing speedy remedy to the neglected wife and children. The application was filed in February, 2002 and accordingly, the interim maintenance order should have been given effect from February, 2002. It is the duty of husband or father who has knowledge about his own income to disclose income and the person who seeks maintenance cannot be directed to prove the income of the person from whom maintenance has been claimed. The amount of maintenance is inadequate as the child is now a student of Class VII and the father has share in their own business and earns more than Rs. 4,0007-per month. The amount of maintenance requires enhancement and the maintenance order should be made effective from date of application. In support of his contention he cited the decision of Chandana Guha Roy v. Goutam Guha Roy, reported in 2004(1) Cal LJ 1.
6. After carefully going through the revisional applications and the annexures made with the said applications and submissions made by the learned Advocates of the parties I find that Suchasis @ Snehasis Patra is the son born out of the wedlock of Sravani Patra (since deceased) and Shibdas Patra, the father and petitioner of C. R. R. No. 748/03 and the opposite party of C. R. R. No. 961/03. There is no dispute that Sravani Patra committed suicide on 31.10.91 and a police case was started due to her unnatural death. The sessions trial that followed begin S.T. No. 8/July/95 ended in conviction of the husband namely Shibdas Patra, the father of the child. The child Snehasis was then aged about two years when his mother expired and his maternal grandfather namely, Sushil Mondal brought him to his house and since then he is living with maternal grandfather.
7. The crux for consideration is whether the learned Magistrate acted illegally by allowing the interim maintenance prayer for the child and not staying the progress of the Section 125 Criminal Procedure Code case as claimed by the father of the child during pendency of his application for custody of child under Act VIII of 1890 i.e. application under the Guardians and Wards Act. After considering the legal principles and the provisions of Section 125 of Criminal Procedure Code and the provisions of Guardians and Wards Act, I am not convinced with the contentions of learned Advocate for Shibdas Patra. The settled principle is that, remedy under Section 125 and Guardians and Wards Act are independent and not related to each other. In the instant case it is evident from materials on record and the order of the learned Magistrate that the father did not send any money or any article for the maintenance of his minor son Snehasis Patra. The father cannot refuse to maintain his own child simply on the ground that he is now living with his maternal grandfather. The contention that he has prayed for custody of the child is itself not a ground to reject the prayer made by the maternal grandfather for the maintenance of the child. A father cannot refuse to maintain his child simply on the logic that ho has filed an application in Civil Court praying for custody of his child. If the father wants custody of the child he must enforce his right in a Civil Court and so long the Civil Court does-not give any finding regarding custody of the child the father cannot refuse maintenance for the child. A Criminal Court while dealing with an application under Section 125 of Criminal Procedure Code is not empowered to take into consideration propriety of custody of child. A Criminal Court may at best take into consideration the fact of custody but has no power to pass any direction touching propriety of custody of child. Here the father expressed his intention that he is willing to maintain his child if the child is given to his custody. A bare offer by a father who has not taken any interest to maintain his child earlier and even during pendency of the application for interim maintenance is not empowered to refuse maintenance for the child. The fact that the minor son Snehasis is now living with his maternal grandfather does not disentitle him from claiming maintenance and, in fact, maternal grandfather Sushil Mondal has filed the application for maintenance of the minor child. As the matters of Section 125 Criminal Procedure Code application and the application for custody of the child under the Guardians and Wards Act are completely different and not related to each other, a Magistrate is not empowered to stay the proceeding under Section 125 of Criminal Procedure Code, during the pendency of the application filed by the father praying for custody of his minor son under the Guardians and Wards Act.
8. It appears from the submission of the learned Advocate Mr. Asraf Ali that the husband is not even paying the amount of Rs. 500/- directed by this Court by order dated 15.5.03. His contention is that the amount granted by the learned Magistrate was inadequate and it should be enhanced. On the contrary, the contention of Ms. Mishra, learned Advocate for the father is that the learned Magistrate did not consider his income properly. Considering the written objection or show-cause filed by the father in the Court of the learned Magistrate against application for interim maintenance I find that therein he stated that he is holding 12.5% share in the firm under the name and style 'M/s. Eagle Engineering Company'. Petitioners contention in the application for interim maintenance was that the father earns more than Rs. 4,000/- per month from their business. It has been established from his written objection that the father has share in a business firm and accordingly learned Magistrate made no mistake by observing that the father cannot deprive his son from getting maintenance. Learned Magistrate in specific term did not mention in his order whether father has sufficient means or not but, his discussion reveals, that father has sufficient income when he stated that he has 12.5% share in the firm under the name and style 'M/s. Eagle Engineering Company'. Assuming but not agreeing that, the father has no income from his business concern, being an able-bodied man and father of the minor son he is bound to maintain his minor son and to pay maintenance. Considering the fact that he has 12.5% share in their business concern it has been established convincingly that the father has sufficient means to pay maintenance to his own minor son.
9. Moreover, it is within special knowledge of Shibdas Patra, the father of the minor son regarding his income and he did not make any attempt to prove his actual income or his monthly or yearly earning from the firm 'M/s. Eagle Engineering Company'. He did not produce any account book or balance sheet of the company to show monthly or yearly income of the said business concern. Shibdas Patra was to disclose his income as it was within his special knowledge as provided in Section 106 of the Indian Evidence Act. That being the position there is no ground at all to disbelieve the contention of the petitioner Subol Mondal regarding monthly income of Shibdas Patra. This Court in similar situation in an application under Section 24 of the Hindu Marriage Act for alimony pendente lite where the income of the husband was in question held that : "The income of the husband must be within his special knowledge and he did not make any attempt to prove either his actual income or his dismissal from service though Section 106 of the Evidence Act is very clear in this regard." Chandana Guha Roy v. Goutam Guha Roy (supra).
10. Considering all aspects I am of opinion that the son who is now a student of class VII in a school requires maintenance for his school dress, books, tuition fees etc. and Rs. 800/- per month in these present hard days is insufficient, Accordingly, it would meet ends of justice if the amount of interim maintenance is enhanced to Rs. 1,200/- per month from the date of order of the learned Magistrate. The maternal grandfather prayed for giving effect of the order from the date of the application but, I am not convinced with his submission and it would have been made effective from date of application if the amount was not enhanced. When the amount of maintenance has been enhanced by this Court I think that for ends of justice it should be effective from date of order of the learned Magistrate. The father shall go on paying interim maintenance @ Rs. 1,200/- per month till the learned Magistrate disposes of the main application under Section 125 of Criminal Procedure Code and passes final order for maintenance on the basis of evidence and materials on record. The arrear interim maintenance amount shall be paid in ten equal monthly instalments along with regular monthly payment of interim maintenance amount. The revisional application being C. R. R. No. 748/08 having no merit fails accordingly and the revisional application being C. R. R. No. 961/03 is allowed in the light of the observations made above.
11. This order will govern both the revisional applications being C. R. R. No. 748/03 and C. R. R. No. 961/03.
12. Learned Judicial Magistrate is directed to proceed with the main Section 125 Criminal Procedure Code application and to dispose of the same as expeditiously as possible and he shall arrive at his own decision in accordance with law without being influenced by any observation of this Court in these revisional applications.
13. Send a copy of this order to the learned Judicial Magistrate, 7th Court, Howrah for information and necessary action.