Calcutta High Court (Appellete Side)
Sudeb Hansda vs Niyati Hansda & Ors on 13 December, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
CRR 1410 of 2019
Sudeb Hansda
Versus
Niyati Hansda & Ors.
With
CRR 143 of 2019
Niyati Hansda & Anr.
-Versus-
State of West Bengal & Anr.
Advocate for the Petitioners : Mr. Biswarup Biswas
.....For the petitioner in CRR 1410/19
Advocate for the opposite party : Mr. Pawan Kumar Gupta,
Mr. Sougata Mitra,
Ms. Sofia Nesar
...For the Petitioner in CRR 143/19 &
opposite party in CRR 1410/19
Advocate For the State : Bidyut Kumar Roy
Judgment on : 13.12.2019.
Madhumati Mitra, J. :
Both the criminal Revisional Applications have been preferred challenging the same order dated 30.06.2018 passed by the Learned Additional Sessions Judge, Fast Track 2nd Court, Purulia in Criminal Revision no.21 of 2016.
By the impugned order Learned Judge has allowed the Revisional application being No.21 of 2016 in part on contest. The husband has been directed to pay a sum of Rs.5,000/- (Rupees Five Thousand) per month to the wife and a further sum of Rs.3000/- per month for the minor child of the parties towards maintenance from the date of application i.e. on 19.03.2015. The husband has also been directed to pay the arrears maintenance amount at the earliest and preferably within twenty four months from the date of the impugned judgment and order.
The petitioner being the husband of the opposite party/wife has preferred CRR No. 1410 of 2019 under Section 482 of the Code of Criminal Procedure challenging the judgment and order in Criminal Revision No.21 of 2016.
On the other hand, the wife has also challenged the same judgment and order by preferring another application under Section 401 read with Section 482 of the Code of Criminal Procedure. That application has been registered as CRR No.143 of 2019.
It appears that both the Revisional Applications have arisen out of the same order. I think both the applications require to be disposed of by same Judgment and order.
Learned Advocate appearing for petitioner of CRR No.1410 of 2019 has contended that both the Learned Courts below committed an error by allowing maintenance to the petitioner of CRR 143 of 2019 and her child. His first contention is that the opposite party (wife) of the Revisional Application 1410 of 2019 is not the legally married wife of the petitioner. He has contended that factum of marriage between the parties has not been proved by cogent evidence. According to his contention in order to get maintenance under the provision of Section 125 of the Code of Criminal Procedure the wife/petitioner is required to prove that she is the legally married wife of the opposite party.
The Learned Counsel for the petitioner of CRR 1410 of 2019 has assailed the impugned order by stating that the Learned Judge has failed to assign reasons while giving effect to the impugned order of maintenance from the date of the application. He has forcefully urged that order of maintenance from the date of application is not sustainable in law in absence of specific and cogent evidence.
In support of his contention, the Learned Advocate for the petitioner of CRR No.1410 of 2019 has placed his reliance on the following decisions:-
i. Badshah Vs. Urmila Badshah Godse & Anr. reported in (2014)1 SCC188;
ii. Savitaben Somabhai Bhatiya Vs. State of Gujarat & Ors. reported in (2005) 3 SCC 636;
iii. Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivaram Adhav & Anr. reported in (1988) 1 SCC 530;
iv. Saraswati Maity @ Saraswati Jana Vs. Goutam Maity reported in 2017 3 CriLR(Cal) 616.
On the other hand, Learned Counsel for petitioner of CRR No.143 of 2019 has refuted the submissions made by the Learned Counsel for the petitioner of CRR 1410/2019 and contended that both the Learned Courts below have rightly held that the wife/petitioner is the legally married wife and the observations made by the Learned Courts below are based on materials placed on record. He has further contended that the Learned Judge has rightly granted the maintenance to the wife and the child from the date of filing of the application for maintenance and there is no cogent ground for interference with the impugned judgment and order.
Learned Counsel for the petitioner of Revisional Application No.143 of 2019 has assailed the impugned order passed by the Learned Additional Sessions Judge in Revision by submitting that the Learned Judge has reduced the amount of maintenance of the petitioner/wife and her child without considering the attending circumstances and the reduction of amount of maintenance from Rs.8000/- (Rupees Eight Thousand) and Rs.5000/- (Rupees Five Thousand) (to the mother and her child respectively) to Rs.5000/- (Rupees Five Thousand) and Rs.3000/- (Rupees Three Thousand) respectively is not justified.
I have considered the submission and rival submission made by the Learned Counsel appearing for the parties and considered the materials placed on record.
Before considering the submission and rival submission of the parties, it would be better to deal with facts of the case which led to filing of both the Revisional Applications.
The facts giving rise to the present Revisional Applications are as follows:-
The petitioner of Revisional Application no.143 of 2019 in her application under Section 125 of the Code of Criminal Procedure has claimed that she is the legally married wife of the opposite party and their marriage took place on 15.12.2011. One daughter was born on 02.06.2012 out of their wed-lock.
Petitioner/wife has also alleged that she was subjected to torture by her husband for demand of dowry. It has been alleged by the wife that after birth of a female child the torture became unbearable. Petitioner/wife lodged a written complaint against her husband with Boro Police station which was registered as Boro Police Station Case No.12 of 2014 under Sections 498/323/406 of the Indian Penal Code and under Sections 3 and 4 of Dowry Prohibition Act. The said investigation ended in submission of charge-sheet against the opposite party. It was the allegation of the petitioner that her husband entered into another marriage with one lady viz Laxmi Bari Hasnda and got their marriage registered under Special Marriage Act 1954 on 22.09.2014. She alleged that her husband tried to project the said Laxmi Bari Hansda as his first wife to deprive her. In her application under Section 125 of the Code of Criminal Procedure the wife/petitioner alleged that she was driven out of her matrimonial home with her child on 04.01.2014. As such she was compelled to take shelter at the residence of her father. Petitioner/wife has also claimed that she has no source of income to maintain herself and the child. It has been claimed by the wife/petitioner that her husband is a teacher of a High School and he earns Rs.30,000/- (Rupees Thirty Thousand) per month. She has prayed Rs.10,000/-(Rupees Ten Thousand) and Rs.5000/- (Rupees Five Thousand) per month as maintenance for self and child respectively.
In his written objection filed in connection with the application under Section 125 of the Code of Criminal Procedure, opposite party denied his relationship with the petitioner. He has claimed that he is a married man and his marriage was solemnized with another lady.
In his written objection he has also claimed that the petitioner earns Rs.15,000/- (Rupees Fifteen Thousand) per month as she is working as staff nurse.
After affording opportunity of being heard to both the parties, the Learned Magistrate on 17.08.2016 disposed of the application under Section 125 of the Code of Criminal Procedure holding that the opposite party is the husband of the petitioner and opposite party is also the father of the child of the petitioner. Learned Magistrate observed that the opposite party/husband neglected to maintain the wife/petitioner and her child. Learned Magistrate after considering the facts and circumstances of the case granted maintenance to the wife/petitioner and her daughter at the @ Rs.8000/- and Rs.5000/- per month respectively from the date of the filing of the application for maintenance.
Being aggrieved by and dissatisfied with the said order of maintenance passed by the Learned Magistrate, the opposite party/husband preferred a Revisional Application being No.21 of 2016 before Learned Sessions Judge, Purulia.
That Revisional Application was transferred to Learned Additional Sessions Judge, Fast Track, 2nd Court, Purulia for disposal. Learned Additional Sessions Judge has allowed that Revisional Application in part on 30.06.2018 and reduced the quantum of maintenance from Rs.8000/- and Rs.5000/- to Rs.5000/- and Rs.3000/- for the wife and the child respectively.
During course of hearing Learned Counsel for the petitioner of CRR 1410 of 2019 has vigorously argued that the impugned judgments and orders passed by the Learned Courts below are not in conformity with the facts and circumstances of the present case. He has contended that the Learned Courts below have failed to appreciate the actual facts that the petitioner of Section 125 of the Code of Criminal Procedure is not the legally married wife of the opposite party and the opposite party was already married prior to alleged marriage as claimed by the petitioner. In this connection Learned Counsel has cited a decision of Badshah Vs. Urmila Badshah Godse and Anr. reported in (2014) 1 SCC 188 and contended that alleged marriage took place during the subsistence of first marriage of the opposite party and as such said alleged marriage being the second marriage has got no binding effect and void ab initio. The petitioner is not entitled to claim maintenance on the basis of that alleged marriage.
On the contrary Learned Counsel for the petitioner of Revisional Application No.143 of 2019 has contended that petitioner is first wife of the opposite party and the opposite party married another lady during the subsistence of his marriage with the present petitioner.
At the time of perusal of the impugned judgment and order passed by the Revisional Court it appears that the same question was raised before the Learned Court Below. Learned Judge has observed that the revisionist married the present opposite party no.1 by suppressing his earlier marriage and held that the Learned Magistrate was justified in granting maintenance to the wife.
From Annexure P3 of the supplementary affidavit filed by the petitioner of CRR No.1410 of 2019 it appears that the petitioner of the application under Section 125 of the Code of Criminal Procedure was cross-examined by the Learned Magistrate on 15th February, 2016. During her cross-examination she deposed that one Laxmi Bari Hansda is the wife of Sudeb Hansda (opposite party/husband) and she again deposed that she did not know that opposite party married to Laxmi Bari Hasnda about seven/eight years ago. From the evidence of the petitioner/wife it appears that she had no knowledge about the marriage of opposite party seven/eight years prior to her deposition on 15.02.2016. From annexure P4 of the supplementary affidavit filed by the husband/petitioner of CRR 1410 of 2019 it appears a certificate of marriage was issued by District Sub- Registrar and Ex-officio Special Marriage Officer, Purulia under Special Marriage Act, 1954 on 22.09.2014. From the said document it transpires that Sudeb Hansda son of Srihari Hansda and Laxmi Bari Hansda daughter of Late Chinibas Tudu appeared before the Special Marriage Officer under Special Marriage Act, 1954 on 22nd September, 2014 and declared that a ceremony of marriage has been performed between them and they have been residing together as husband and wife since the time of their marriage and in accordance with their desire their marriage was registered on 22nd September, 2014 having effect from 13.05.2006. From the said annexure it transpires that the certificate was issued as per the fifth schedule under Section 16 of the Special Marriage Act. A certificate under Section 16 of the Special Marriage Act by itself does not prove that marriage in another form declared to have been solemnized did actually take place. From the certificate issued by the marriage officer under Special Marriage Act it is clear that the alleged marriage was not solemnized under the Special Marriage Act and the marriage was solemnized in any other form but registered under the Special Marriage Act. In his written objection filed on 08.12.2015 before the Learned Magistrate husband/petitioner stated that he married one Laxmi Bari Hansda, but the date of such marriage has not been disclosed by him. In view of Section 16 of the Special Marriage Act, the certificate issued as per fifth schedule of the Act cannot be said to be a conclusive proof of a marriage solemnized under any other form of Marriage. Moreover from the materials placed on record it appears that the husband/opposite party during his cross-examination admitted that he signed in the register of the Nursing Home as guardian while the petitioner had been admitted there and gave birth to a female child. The birth certificate of the daughter of petitioner shows that her daughter was born on 28.06.2012 and the name of the opposite party was mentioned as father of that child.
Having regards to the materials placed on record it can be presumed that the petitioner is the legally married wife of the opposite party and out of their wedlock the female child was born.
Both the Learned Courts below have observed and held that the petitioner is the legally married wife and the female child was born out of their wedlock. I do not find any reason to interfere with the concurrent findings of both the Learned Courts below in this regard.
Learned Revisional Court has reduced the quantum of maintenance. At the time of reducing the quantum of maintenance the Learned Judge analyzed the evidence on record, the income of the parties etc. Thereafter the quantum of maintenance granted to the petitioner and her daughter has been reduced. I do not find any reason to interfere with the quantum of maintenance as determined by the Learned Judge in Revision.
Learned Counsel for the petitioner of 1410 of 2019 has submitted that the order of maintenance should be from the date of the order and not from the date of filing of the application. He has submitted that the Learned Courts below have committed an error in granting maintenance from the date of filing of the application for maintenance.
It is well settled that the court has discretion to grant maintenance either from the date of the order or from the date of the application.
Both Learned courts below have elaborately considered the factual and legal aspects of the case. It is true that both the courts below have not mentioned any separate reason in this regard. Absence of separate reasons for granting maintenance from the date of the application does not mean that the maintenance should be awarded from the date of the order. If the order of maintenance is silent as to the date of taking effect of the order, in that case the order would be effective from the date of order. In the present case the Learned Magistrate has specifically stated that the order of maintenance would be effective from the date of application. The Revisional Court has also affirmed that the petitioner wife is entitled to get maintenance from the date of the application.
The facts and circumstances of the present case show that the Learned Courts below have been satisfied about the willful negligence of the husband to maintain his wife and child. As such the husband has been directed to pay maintenance to the wife and child from the date of the application. In the present case there are cogent and sufficient grounds to award maintenance to the wife and the child from the date of the application.
I do not find any reasonable ground to interfere with the impugned judgment and order passed by the Revisional Court.
Both the applications being CRR 1410 of 2019 and CRR 143 of 2013 are devoid of merit.
Both the Revisional Applications are dismissed.
Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Madhumati Mitra, J.)