Calcutta High Court (Appellete Side)
Latika Banerjee vs Ajoy @ Bablu Banerjee And Anr on 8 June, 2016
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE SANKAR ACHARYYA
C.R.R. No. 2747 of 2011
In the matter of :
Latika Banerjee
Vs.
Ajoy @ Bablu Banerjee and Anr.
For the petitioner : Mr. Probal Kr. Mukherjee; senior advocate.
Mr. Sukanta Chakraborty; advocate.
Mr. Anindya Halder; advocate.
For the opposite : Mr. Rabindra Nath Bag; advocate.
Party no. 1 Mr. Sudhir Kr. Bhowmik; advocate
Ms. Manideepa (Paul) Roy; advocate.
Ms. Payel Bag; advocate.
Heard on : 16.12.2015, 05.01.2016, 08.01.2016,
19.01.2016, 20.01.2016, 21.01.2016,
28.01.2016, 03.02.2016, 05.02.2016,
31.03.2016, 07.04.2016, 03.05.2016,
19.05.2016.
Judgment on : 08.06.2016
SANKAR ACHARYYA, J.
This revisional application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 has been filed by petitioner Latika Banerjee against her husband Ajoy alias Bablu Banerjee and the State of West Bengal as opposite party nos. 1 and 2 respectively challenging the judgment and order dated 24th June, 2011 passed by learned Additional Sessions Judge, 1st Court, Purulia in Criminal Revision No. 7 of 2007 by which the judgment and order dated 28th December, 2006 passed by the learned Chief Judicial Magistrate, Purulia in Misc. Case No. 120 of 1996 has been set aside.
Petitioner filed Misc. Case No. 120 of 1996 under Section 125 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) against her husband opposite party no. 1 for getting maintenance allowance for herself and her minor son Tarun Banerjee . Firstly, on 13.10.1999 prayer of the petitioner for her maintenance was rejected but in respect of prayer for maintenance of minor Tarun Banerjee, learned Chief Judicial Magistrate directed for payment at the rate of Rs.400/- per month by the opposite party no. 1. Petitioner challenged that order before learned Sessions Judge filing Criminal Revision No. 1 of 2000 before the learned Sessions Judge, Purulia. Said revisional application was allowed on 3rd March, 2001. The order passed by learned Chief Judicial Magistrate, Purulia on 13.10.1999 in Misc Case No. 120 of 1996 under Section 125, Cr.P.C. rejecting the application of the wife for maintenance was set aside and the case was sent back to the learned Trial Court for proper consideration of the application for maintenance of the wife in the light of observations made in the judgment of learned Sessions Judge, Purulia. The opposite party no. 1 challenged the said judgment of learned Sessions Judge, Purulia before this High Court filing CRR No. 917 of 2001. A coordinate Bench of this Court disposed of that revisional application (CRR No. 817 of 2001 on 13.01.2005) with observation that there is no merit in the revisional application and being so the revisional application fails and dismissed. Learned Judge held in that order, "Further I make it clear that whatever I have stated above or observed should not be considered as opinion regarding merit of the case and the concerned Court at appropriate stage would act in accordance with law and the learned Court below would arrive at his own conclusion and would not be guided by the observations made by this Court in this revisional application".
Thereafter, learned Chief Judicial Magistrate, Purulia heard the case and passed his judgment on 28.12.2006 by which the petition filed by petitioner under Section 125, Cr.P.C. was allowed on contest with an order that the petitioner is entitled to get a sum of Rs.1200/- per month from the opposite party as her maintenance. Said judgment was challenged by the opposite party no. 1 before the learned Sessions Judge, Purulia filing Criminal Revision No. 7 of 2007. Said revisional application was heard by learned Additional Sessions Judge, 1st Court, Purulia and the impugned judgment dated 24.06.2011 was passed. By that judgment the revisional application was allowed and the impugned judgment dated 28.02.2006 passed by learned Chief Judicial Magistrate, Purulia in Misc. Case No. 120 of 1996 was set aside. Said judgment dated 24.06.2011 passed by learned Additional Sessions Judge, 1st Court, Purulia is under challenge before this Court in this revisional application.
Inter alia, the petitioner herein has contended that the learned Additional Sessions Judge failed to appreciate the evidence of the petitioner and her witness and that the impugned judgment is bad in law and liable to be set aside.
At the time of hearing learned counsel for the petitioner submitted that learned Additional Sessions Judge, 1st Court, Purulia heard the revisional application and not an appeal. According to the learned advocate the revisional Court ought not to have enquired as to whether the petitioner wife left her matrimonial home voluntarily or under compelling situation. It has been also argued on behalf of the petitioner that there are self-contradictory findings in the impugned judgment. In support of his said arguments he pointed out the observations made in page- 8 of the impugned judgment which is set out hereunder:-
"It is however, to be remembered that it is very difficult to get any proof of torture on a housewife as it is done within the four walls of the house and never in public. But, some surrounding circumstances there showing some indication of torture meted out to the housewife. She did not inform anybody, did not try to contact her parents and did not go to any doctor even after coming back to her father's house. No complaint was made immediately after her returning from her matrimonial home. The learned lawyer, however, submitted that a Hindu woman does not leave her matrimonial home unless she is compelled to do so. I simply am not ready, act on such supposition. There may be mental differences and maladjustment which may lead the woman to leave her matrimonial home but that is not sufficient reason for the purpose of Sec.125 (4) of Cr.P.C."
Learned counsel has further argued that learned Additional Sessions Judge passed the impugned judgment on the basis of his surmise and conjecture. He has pointed out the observations made in the second para at page- 9 of the impugned judgment which is also set out hereunder:-
"Another interesting aspect of this case is that the O.P. tried to prove that he had taken initiative to bring back his wife through a conciliation by the intervention of Gram Panchayat. His wife came out of his house in the middle of May and mentioned that there was normal relationship. He had taken his wife to her father's house and allowed her to stay with her parents for sometimes and after 15 days he wrote a letter to the Panchayat to intervene. What prompted him for seeking intervention of restoring conjugal relationship is not clear. Neither of the parties disclosed the real situation. It leads me to infer that it is mere family bickering which is the cause behind the petitioner to stay away from her matrimonial home and I have no hesitation to hold that such a maladjustment or family bickering are not sufficient cause for getting maintenance when the petitioner refused to live with her husband".
According to the learned counsel for the petitioner the valuable statutory right of a distressed housewife having no means to maintain herself should not be ignored on the basis of mere inference of the 1st revisional Court as has been done in the impugned judgment. He cited two decisions of the Hon'ble Supreme Court of India in the case of Chaturbhuj Vs. Sita Bai reported in (2008) 2 Supreme Court Cases 316 and the case of Shamima Farooqui Vs. Shahid Khan reported in (2015) 5 Supreme Court Cases 705 and a judgment of Gauhati High Court in the case of Basir Uddin Laskar Vs. State of Assam and Another reported in 2002 Cri.L.J. 4629.
On the other hand, learned counsel for the opposite party no. 1 supported the impugned judgment passed by learned Additional Sessions Judge, 1st Court, Purulia. He has advanced his arguments that learned 1st revisional Court rightly dismissed the claim of petitioner for maintenance allowance as the petitioner has been voluntarily living away from her husband opposite party no. 1 without sufficient cause. According to him, the petitioner is not entitled to get maintenance allowance from the opposite party no. 1 in view of the provisions of Section 125 (4), Cr.P.C. In support of his arguments he cited two decisions of the Hon'ble Supreme Court of India in the case of Debnarayan Halder Vs. Smt. Anushree Halder reported in AIR 2003 (SC) 3174 and the case of Achutananda Baidya Vs. Prafulla Kumar Gain and Others reported in AIR 1997 (SC) 2077, a judgment of Bombay High Court in the case of Sangeta Arun Mhasvade Vs. Arun Aba Mhasvade and Another reported in 1984 Cri.L.J. 1524 and a judgment of Allahabad High Court in the case of Abul Ahad Vs. Smt. Nasreen Bano reported in 1994 Cri.L.J. 688.
On scrutiny, it appears from the annexures of the petitioner's application that the matter of granting/refusing maintenance allowance in favour of the wife petitioner hinges on the only question of fact as to whether the wife petitioner refused to live with her husband opposite party without any sufficient cause or not. If the answer is affirmative it will go in favour of husband opposite party but if the answer is in the negative it will go in favour of the wife petitioner.
In the first Court the wife led evidence to prove that she was subjected to cruelty by her husband in her matrimonial home and was driven out from her matrimonial home during her pregnancy. She further alleged that her husband had illicit relation with another woman. The husband led evidence denying each and every allegation brought by his wife against him. He also adduced evidence to prove that he sincerely tried to bring his wife and child to his home even under intervention of panchayat but his attempts failed. Oral evidence adduced by them is oath versus oath. The husband (opposite party no.1) adduced exhibits B and C as two letters (inland letters), purported to had been sent to him by his wife by post soon after her last departure of her matrimonial home. The wife (petitioner) denied her sending of those letters to her husband by her. It reveals from the materials on record that contents of those two purported letters are the most vital pieces of documentary evidence to resolve the question as to whether the wife opposite party was compelled to leave her matrimonial home due to torture on her by her husband or she voluntarily refused to live with him without any sufficient cause.
In the impugned judgment learned Additional Sessions Judge did not make any decisive finding about exhibits B and C. Learned Magistrate also did not discuss properly in his judgment about such important evidence. Learned Additional Sessions Judge observed in the impugned judgment that "The O.P. challenged this aspect by referring two letters purported to be written by this wife. Nobody care to establish the authenticity of those two letters. It is true, that if it is proved that those two letters were really written by the petitioner then the case of the petitioners is totally destroyed but when petitioner denied the letters as written by her and O.P. could not prove it decisively then we must leave that aspect aside". In my opinion, knowing fully well that exhibits B and C are the most vital documents to find out the truth for adjudication on real matter in dispute between the parties, learned Additional Sessions Judge has erroneously avoided consideration of exhibits B and C. It is pertinent to mention that in the earlier occasion on the same subject matter Hon'ble Judge (P.N. Sinha J.) made observation inter alia in the order passed in CRR No. 917 of 2001 of this Court on 13.01.2005, "...A duty was then imposed upon the learned Magistrate to ask the parties particularly the wife as to whether she is ready to give her specimen hand writing in Court so that the specimen handwriting and the letters can be sent to the handwriting expert for examination and report as to the identity of scribe of the letters ....." In the impugned judgment it has been mentioned that "O.P. filed a petition before the learned Chief Judicial magistrate, Purulia referring to such observation of Hon'ble Court that the petitioner be asked to give her specimen signature. Learned Chief Judicial Magistrate, Purulia rejected the petition stating that such a point was raised and decided earlier vide Order dated 10.11.1998 and the learned Chief Judicial Magistrate, Purulia thereafter proceeded with the hearing of this case".
Learned Additional Sessions Judge was also hurried to dispose of the revisional application without considering the necessity to resolve the matter to arrive at just decision in the case which does not appear to me proper or a correct decision. In my opinion, it was incumbent upon learned Additional Sessions Judge under the attending circumstances, to give an opportunity to the husband opposite party who intended to rely upon exhibits B and C for making his fresh petition to get the handwriting of said documents proved beyond doubt with the help of handwriting expert and also to give direction to the wife petitioner to write the full contents of exhibits B and C in Court as her specimen handwriting for comparison with exhibits B and C to prove the said letters are forged and to certify the said specimen writings as copies of the documents in question by a competent ministerial officer of the Court in presence of learned counsels for both the parties and then to pass necessary order for examination of the documents by expert and for submitting report in Court. When the petitioner wife claims that she did not write the exhibits B and C letters, her giving specimen handwriting in Court cannot be treated as compelling/insisting her for giving evidence against herself.
In the case of Deb Narayan halder (Supra) the Hon'ble Supreme Court inter alia held, "It is well settled that the appellate or Revisional Court while setting aside the findings recorded by the Court below must notice those findings, and if the Appellate or Revisional Court comes to the conclusions that the findings recorded by the Trial Court are untenable, record its reasons for coming to the said conclusion. When the findings are findings fact it must discuss the evidence on record which justify the reversal of the findings recorded by the Court below. This is particularly so when findings recorded by the Trial Court are sought to be set aside by the Appellate or Revisional Court".
In my opinion, this principle was not followed by the learned Additional Sessions Judge in the impugned judgment.
In the case of Chaturbhuj Vs. Sita Bai (Supra) the Hon'ble Supreme Court held, "...... Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal V. Veena Kaushal falls within constitutional sweep of Article 15 (3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya V. State of Gujarat".
Said observation was quoted in the subsequent judgment in Samima Farooqui Vs. Shahid Khan (Supra) by the Hon'ble Apex Court. In the impugned judgment learned Additional Sessions Judge set aside the judgment of learned Chief Judicial Magistrate wherein maintenance allowance was granted in favour of wife petitioner but there is lack of sufficient reasoning in the findings made in the impugned judgment for denial of the right of wife petitioner for getting maintenance allowance under Section 125, Cr.P.C. As such, I am of the opinion that in the impugned judgment it was incumbent on the learned Additional Sessions Judge to give more reasoning in support of his decision so that it would be apparent from the judgment that the object and scheme of the special enactment was kept in mind by the learned Judge. I make it clear that in appropriate case an application of a wife for maintenance under Section 125 Cr.P.C. may be rejected, subject to fulfilment of legal requirements of the statute, of course, on the basis of sufficient evidence, to prevent abuse of the noble object of social justice.
In the case of Achutananda Baidya (supra) Hon'ble Supreme Court held, "The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within the sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretions, a patent error in procedure, arriving a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior Court, the High Court should not quash the judgment of the sub-ordinate Court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate Court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse".
In view of my observations made in foregoing paragraphs I think it a fit case for interference by this Court exercising power of this Court under Article 227 of the Constitution of India and under Section 482, Cr.P.C. in the finding of fact made in the impugned judgment.
The other decisions of the Hon'ble Bombay High Court, Allahabad High Court and Gauhati High Court cited on behalf of the parties do not change the position.
Having considered the facts, circumstances, evidence and the legal principles I am satisfied to set aside the impugned judgment and order dated 24th June, 2011 passed by learned Additional Sessions Judge, 1st Court, Purulia in Criminal Revision No. 7 of 2007. I think it essential for the ends of justice not to pass any final verdict relating to the correctness of the order granting maintenance allowance in favour of the wife petitioner passed by learned Chief Judicial Magistrate, Purulia on 28th December, 2006 in Misc. Case No. 120 of 1996 in this case. It is necessary to give a direction upon learned Additional Sessions Judge, 1st Court, Purulia to restore the Criminal Revision No. 7 of 2007 of that Court to the original file and number and then to pass necessary orders for examination of exhibits B and C by handwriting expert and to record additional evidence of the parties, if adduced, relating to genuineness or otherwise of exhibits B and C only and then hearing both sides dispose of the revisional application taking into consideration the existing materials and additional evidence including expert's report in accordance with law. Accordingly, this case is allowed but without any order as to costs. The impugned judgment with order dated 24.06.2011 is set aside with direction for restoration of Criminal Revision No. 7 of 2007 to the file in the 1st Court of learned Additional Sessions Judge, Purulia and for disposal in the light of observations made in this judgment. Till disposal of Criminal Revision No. 7 of 2007 in that Court the order of learned Chief Judicial Magistrate granting maintenance allowance will remain in force. The husband opposite party no. 1 is directed to file application in the Court of learned Additional Sessions Judge in Criminal Revision No. 7 of 2007 within fifteen days hereof for examination of exhibits B and C by handwriting expert and within two weeks thereafter on a day to be fixed by Court the wife petitioner shall give her specimen handwriting in that Court for comparison with exhibits B and C by handwriting expert at the cost of husband opposite party in the light of the findings made in this judgment. Be it noted that in case of non- compliance, if any, of this direction by either of the parties adverse inference may be drawn against such party.
A copy of this judgment be sent to the 1st Court of learned Additional Sessions Judge, Purulia from the department for information and compliance.
Urgent Photostat certified copy of this judgment, if applied for, be given expeditiously to the parties or their advocates in compliance of usual formalities.
(SANKAR ACHARYYA, J.,)