Calcutta High Court (Appellete Side)
Upasana Mukherjee vs The State Of West Bengal & Anr on 24 November, 2017
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
CRR No. 2321 of 2016
Upasana Mukherjee
Vs.
The State of West Bengal & Anr.
For petitioner : Mr. Kaushik Chatterjee
: Mr. Prantick Ghosh
For the O.P. No.2
Heard on : 31.10.2017
Judgment on : 24.11.2017
Md. Mumtaz Khan, J. :
The instant criminal revision has been preferred by the petitioner/daughter assailing the judgment and order dated May 25, 2016 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Barasat in Criminal Revision No. 191 of 2014 (new Criminal Revision No. 737 of 2014) dismissing the criminal revision and affirming the order dated May 14, 2014 passed by the learned Chief Judicial Magistrate, Barasat, North 24 Parganas in M. Case No. 515 of 2008 rejecting the prayer for her interim maintenance.
The facts leading to the instant revision is that mother of this petitioner filed an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) against the opposite party no. 2/husband before the learned Chief Judicial Magistrate at Barasat praying for maintenance allowance for her daughter namely this petitioner which was registered as M-Case No. 515 of 2008 and also prayed for interim maintenance allowance but her prayer for interim maintenance allowance was rejected on contest by the learned Chief Judicial Magistrate, Barasat on May 14, 2014. Being aggrieved by and dissatisfied with the same petitioner's mother preferred revision being Criminal Revision No. 191 of 2014 (new Criminal Revision No. 737 of 2014) before the court of sessions but the same was also dismissed by the learned Additional Sessions Judge, Fast Track Court No.2, Barasat by the impugned order.
Being aggrieved by and dissatisfied with the order passed in revision by the learned Additional Sessions Judge petitioner/daughter has come up with the instant revision assailing the propriety of the impugned order.
It was submitted by the learned advocate for the petitioner that this petitioner is the only child born out of the wedlock of Mitali Bose and the opposite party no.2 and she was the minor and in the custody of her mother and as such her mother prayed for her maintenance allowance. It was also submitted by the learned advocate for the petitioner that though the petitioner has now attained majority but she has no means to maintain herself nor she was provided any maintenance by her father during her minority in spite of sufficient means of opposite party no.2 but in spite of the same learned court below rejected the prayer for interim maintenance on the ground that she has already attained majority.
Learned advocate for the opposite party no.2 frankly submitted that there is no dispute with regard to the parentage of the petitioner and/or the means of the opposite party no.2 but according to him at the time of divorce between the petitioner's mother and the opposite party no.2 it was agreed between the mother of this petitioner and the opposite party no.2 that their daughter namely the petitioner will remain in the custody of the opposite party no.2 and accordingly the petitioner was given in the custody of opposite party no.2 and she was properly maintained by him. He further submitted that the petitioner has already attained majority and as such the application filed by her mother claiming maintenance on her behalf was not maintainable.
We have considered the submissions advanced by learned counsels for the parties and gone through the impugned order and the documents on record.
Admittedly, petitioner is the daughter of the opposite party No. 2 and she is now staying with her mother. It is also not in dispute rather admitted position that the petitioner is not getting any maintenance allowance from her father/opposite party No.2. It is also not in dispute that marital tie in between the mother of the petitioner and the opposite party No.2 has been dissolved by a decree of divorce long back in the year 1999. I am not going into any such controversy at this stage as to what was the agreement between the parties with regard to the custody of the petitioner while she was minor and who was looking after her but the fact remains that the petitioner is no longer staying with the opposite party No.2/father nor she was with him when application for her maintenance was prayed for by her mother. It appears from the order passed by the learned Magistrate that prayer for interim maintenance for the petitioner was rejected on the ground that she has attained majority and there was no such plea with regard to her physical or mental abnormality and/or any such injury for which she was unable to maintain herself and further that petition for interim maintenance was not supported by affidavit. In revision learned Additional Sessions Judge held that as the petitioner is in custody of the opposite party No. 1 as per the compromise petition, so she is not entitled for any maintenance. This finding of the learned court below does not appear to be based on sound footing. The grounds assigned by the learned court below in dismissing the revision and affirming the order passed by the learned Magistrate in rejecting the prayer for interim maintenance allowance to the petitioner was not proper. Learned Magistrate was also not justified in holding that because of attaining majority petitioner is not entitled to get any maintenance from her father. It is true that according to the provision of Section 125 of the Code of Criminal Procedure no female child after attainment of majority is entitled to maintenance from her father unless she is unable to maintain herself by reason of any physical or mental abnormality or any such injury. In the instant case it is an admitted fact that the petitioner has attained majority and there is nothing on record to show that she suffers from any physical or mental abnormality or injury for which she is unable to maintain herself. In the case of Jagdish Jugtawat Vs. Smt. Manjulata and Ors. reported in (2002) 5 Supreme Court Cases 422, the Hon'ble Apex Court has been pleased to observe that on a combined reading of Section 125 of the Code of Criminal Procedure and Section 20(3) of the Hindu Adoption and Maintenance Act a female child even after attainment of majority is entitled to maintenance from her parents till her marriage. Admittedly, petitioner is no longer in the custody of the opposite party/father nor any maintenance is provided to her by the father/opposite party. Opposite party in his written objection has taken the plea that petitioner is a working lady and she has her independent source of income which is sufficient for her maintenance. This is has not been dealt with by the learned courts below nor there is any such evidence before this court to arrive at any such conclusion to that effect.
The impugned orders passed by the learned courts below suffer from material irregularity and as such those are, quashed and set aside.
It appears that the case is at the stage of evidence and there is likelihood of disposal of the main application under section 125 Cr.P.C. very soon. In such circumstances, it will not be prudent to pass any order with regard to any interim maintenance allowance at this stage. It appears that the case is at the stage of evidence, so it will be proper if the trial court is requested to expedite the hearing of main application under section 125 Cr.P.C. and dispose of the same at the earliest. Petitioner is given liberty to proceed with the application under section 125 Cr.P.C. filed by her mother on her behalf by stepping into her shoe by making necessary amendment to that effect.
Accordingly, learned Magistrate is requested to expedite the hearing of the main application under Section 125 Cr.P.C. and dispose of the same at the earliest preferably within a period of 3 months from the date of communication of the order without granting any unnecessary adjournment to either of the parties. Both parties are directed to assist the court in the matter of disposal of the application under Section 125 Cr.P.C.
It is, however, made it clear that I have not gone into the merits of the claim of the parties and all points are kept open for decision by the learned Trial Judge without being influenced by any such observations made in the body of the judgment.
A copy of this order be sent to the learned Magistrate for favour of information and necessary action.
The revisional application is thus disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.)