Calcutta High Court (Appellete Side)
1660/2009 on 13 September, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 24 13.09.2011
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s. d. C.R.R 1660 of 2009
Mr. Somnath Banerjee
Mr. Anindya Ghosh ......for the petitioner.
The challenge in this revisional application is to the judgement dated 17-02-2009 passed by the Ld. Additional Chief Judicial Magistrate, Rampurhat, Birbhum in Misc. Case No. 146 of 2004 whereby the ld. court allowed the prayer of the petitioner/wife for monthly maintenance in part. The minor son of the parties of the case was awarded a monthly maintenance of Rs.1000/- by the order impugned while the petitioner was not awarded any maintenance allowance on the ground that she had no reason to live apart from her husband i. e., opposite party.
The petitioner herein Bindbala Ram had taken out an application under section 125 Cr. P. C praying for monthly maintenance of Rs.7000/- per month for herself and Rs.3000/- per month for her minor son. The prayer was opposed by the opposite party husband, who had taken the ground that there was no reason 1 2 for the petitioner/wife to live separately and that she was having a steady income from a beauty parlour. The case was heard on merit. Both the parties adduced the evidence in order to substantiate their respective cases. Upon consideration of the evidence on record and cases of the parties, the ld. trial court found that the petitioner/wife had no reason to live separately. Therefore, prayer for maintenance was refused. However, the minor son was awarded maintenance of Rs.1000/- per month. The petitioner/wife being dissatisfied with the said order has come up with this revisional application mainly on the following ground that the ld. court failed to appreciate the evidence on record in its proper and true perspective.
Mr. Anindya Ghosh, learned counsel appearing for the petitioner submits that the ld. court entirely erred in coming to a conclusion that the petitioner/wife had no reason to live apart. He contends that the ld. court relied on the evidence of the witnesses examined on behalf of the opposite party/husband. The ld. court should not have relied on the evidence of the o. p./husband and come to such a finding.
It is admitted position in this case that the petitioner is the married wife of the opposite party. It is also an admitted position that she was living separately with minor son. 2 3
The ld. court did not find any substance in the specific case of the opposite party/husband that the petitioner was having a beauty parlour and a steady income therefrom.
In the trial court, the petitioner examined herself as P. W. 1. The minor son also examined as P. W. 2. It appears therefrom that she suspected her husband was having illicit relation with some other ladies. In her examination in court, she admitted that she used to reside in a house built by father-in-law. She has also admitted that her father-in-law used to give her Rs.1000/- per moth.
The P. W. 2( Vishal Kr. Ram) being the minor son of the parties had given a rather correct picture of the matrimonial life of the parties. He has stated categorically that his father i. e., the opposite party used to perform dance programme at several places and his mother i. e. the petitioner disliked his performance in the orchestra programmes.
The ld. court, upon consideration of the evidence of P. W. 1 and P. W. 2 and the witnesses examined on behalf of the opposite party, came to a conclusion that the habit of the opposite party to go 3 4 outside for the purpose of performing dance programmes very often was the root of discontents between the couples.
The dispute cropped up over that issue and aggravated by the suspicion of the petitioner that the opposite party must have illicit relation with other ladies. That fact has never been established by any kind of evidence. I find that the ld. court came to a finding that the petitioner had no reason to live separately. She had choosen to live separately according to her own desire and because of the fact that she disliked her husband to perform dance programmes at different places frequently.
That being the fact, the petitioner, as a matter of right, cannot claim maintenance under section 125 Cr. P. C because there was no negligence or refusal to maintain by the opposite party.
Therefore, this Court does not like to interfere in which the finding of facts based on evidence. This is a revisional application and the scope of interference by this Court is very limited. It appears that the ld. trial court neither overlooked any relevant or material evidence on record nor has given importance on any irrevalent material or evidence in order to justify rejection of the prayer of maintenance.
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That being the fact, this Court finds no merit in the revisional application.
Mr. Ghosh, learned advocate for the petitioner contends that the petitioner is willing to go back her matrimonial house and necessary order be passed accordingly.
I do not find any necessity to pass any direction because the matrimonial tie between the parties is subsisting and, therefore, the petitioner being a legally married wife of the opposite party has every right to live together with her husband, the opposite party.
The revisional application is thus dismissed and disposed of accordingly.
Criminal Section is directed to supply urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertakings.
( Kanchan Chakraborty, J. ) 5 6 6