Calcutta High Court (Appellete Side)
Smt. Sutapa Das vs Sri Satyabrata Das @ Bintu & Anr on 18 November, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.R. No. 2012 of 2011
Smt. Sutapa Das
-Versus-
Sri Satyabrata Das @ Bintu & Anr.
For the Petitioner: Mr. Kajal Mukherjee.
For the O.P. No.1: Mr. Sandip Srimani,
Mr. Tapas Majumder.
Heard on: November 18, 2014.
Judgment on: November 18, 2014.
Joymalya Bagchi, J.:
Order dated 31.03.2011 passed by the learned Additional Sessions Judge, Fifth Court, Barasat, North 24 Parganas in Criminal Revision No. 209 of 2010 to the extent it sets aside the order dated August 6, 2010 passed by the learned Judicial Magistrate, 2nd Court, Barasat, District - North 24 Parganas in M. Case No. 200 of 2008 under Section 125 of the Code of Criminal Procedure the maintenance allowance at the rate of Rs.2,000/- per month granted to the petitioner herein by way of maintenance allowance has been assailed in this revision petition.
The case of the petitioner/wife is to the effect that she was married to opposite party no.1/husband on 24.04.2005 under the Special Marriage Act. After marriage, she started residing at the matrimonial home with the opposite party no.1/husband. The opposite party no.1/husband subjected her to mental and physical torture being instigated by other in-laws. Pressure was put up on her to bring Rs.1,00,000/- from her father. She was unhappy at her matrimonial home and she was treated as a maidservant. In the meantime she conceived and ultimately on 11.04.2006 she was driven out from the matrimonial home in a single cloth. She took shelter at her parental home and she gave birth to a minor child. The entire expenses of child birth was borne by the father of the petitioner/wife. No care was taken by the opposite party no.1/husband and no money was sent by him for maintenance of herself and her minor child. She does not have any income of her own. On the other hand, the opposite party no.1/husband is an employee under the Government of West Bengal and had the income of about Rs.12,000/- per month. Under such circumstances, she filed an application praying for maintenance allowance at the rate of Rs.4,000/- per month for herself and Rs.3,000/- per month for the minor child.
In the course of the proceeding, petitioner was examined herself as PW-1. On the other hand, the opposite party no.1 was examined himself as OPW-1.
In conclusion of proceeding, the learned Magistrate by order dated 06.08.2010 directed the opposite party no.1 to pay maintenance at the rate of Rs.2,000/- per month and Rs.1,000/- per month for her minor child payable from the date of the order.
The aforesaid order dated 06.08.2010 passed by the learned Magistrate was challenged by the opposite party no.1/husband in Criminal Revision No. 209 of 2010. By impugned order dated March 31, 2011 the learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas set aside the order dated 06.08.2010 passed by the learned Magistrate to the extent it directed maintenance allowance to be paid to the petitioner/wife. However, by the selfsame order the amount directed to be paid to the minor child was enhanced to Rs.2,000/- per month.
Mr. Mukherjee, learned counsel appearing for the petitioner submitted that the wife was driven out from the matrimonial home and she has no income of her own. There is no reason for the revisional Court to set aside the order of maintenance which was passed in her favour.
Per contra Mr. Srimani, learned counsel appearing for the opposite party no.1 submitted that there was evidence on record that the wife had voluntarily deserted her matrimonial home. He further submitted that she, in fact, deserted her matrimonial home on her birthday when celebrations were going on. It is patently absurd to accept that the petitioner was subjected to torture and cruelty when the opposite party no.1/husband and in-laws had made arrangements for her birthday celebration. He also submitted that no report of torture was made to the police authority by the petitioner/wife. Mr. Srimani further submitted that in a divorce proceeding instituted by the husband being Matrimonial Suit No. 29 of 2013 pending before the learned Additional District Judge, Fast Track Court No.5, Barasat, North 24 Parganas the petitioner/wife and her minor son have been awarded alimony pendente lite to the tune of Rs.7,000/- per month which has been affirmed by this Court vide order dated September 11, 2013 in C.O. No. 2243 of 2013. He submitted that in view of such order passed in the matrimonial proceeding, further maintenance need not be ordered in the instant case.
I have considered the rival submissions of the parties as well as the materials on record. The relationship by and between the parties is admitted. There is evidence on record that there was demand of money to the tune of Rs.1,00,000/- and the petitioner was subjected to mental and physical cruelty over such demand.
The learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas disbelieved such allegation of torture on the ground that the birthday of the petitioner was celebrated by the opposite party n.1/husband and other in-laws. He was of the view that the petitioner/wife could not have been driven out from the matrimonial home in course of such celebration.
I am unable to accept such reasoning of the learned Additional Sessions Judge, 5th Court, Barasat. There is ample evidence on record appearing from the deposition of PW-1 that she was subjected to mental and physical cruelty. Merely because her birthday was celebrated on a particular date, the allegations of continuous torture cannot be washed out.
Be that as it may, the conduct of the opposite party no.1/husband speaks volumes as to his indifference in the matter of restitution of conjugal rights. No suit for restitution of conjugal right was filed by the opposite party no.1/husband. On the other hand, the husband has filed a suit for divorce being Matrimonial Suit No. 200 of 2008 before the learned Additional District Judge, Fast Track Court No.5, Barasat.
I do not express any opinion with regard to the said matter which is subjudice before the appropriate Court. However, the material on record and the attending facts and circumstances of the case including conduct of the parties, persuade me to hold that the finding of the learned Additional Sessions Judge, 5th Court, Barasat that the petitioner had withdrawn herself from the company of the opposite party no.1 without any justifiable cause, appears to be contrary to the materials on record.
It has been further argued that as the petitioner is receiving alimony pendente lite pursuant to orders passed by the Civil Court, no interference with the impugned order is called for.
I am unable to accept such submission of the learned senior counsel appearing on behalf of the opposite party no.1/husband. The order of alimony pendente lite is an interlocutory one and is subject to the pendency of the suit. Legality or otherwise of the impugned order is to be assessed on its own merits irrespective of the aforesaid order of alimony pendente lite.
Accordingly, I am of the opinion that the impugned order passed by the learned Additional Sessions Judge, 5th Court, Barasat to the extent it sets aside the order of maintenance allowance payable to the petitioner/wife is liable to be set aside. Accordingly, the impugned order dated March 31, 2011 passed by the learned Additional Sessions Judge, 5th Court, Barasat in Criminal Revision No. 209 of 2010 setting aside the order of maintenance allowance payable to the petitioner/wife is quashed. The order passed by the learned Magistrate dated 06.08.2010 pertaining to the grant of maintenance allowance to the petitioner/wife stands revived.
I however make it clear that the maintenance allowance directed to be paid by the order passed the proceeding under Section 125 of the Code of Criminal Procedure shall be adjusted with the alimony paid in terms of the order dated September 11, 2013 passed by this Court in C.O. No.2243 of 2013.
With the aforesaid directions, the revision petition is disposed of. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.
(Joymalya Bagchi, J.)