Calcutta High Court (Appellete Side)
3292/2010 on 22 March, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
3.2013
11
C. R. R. 3292 of 2010
With
C.R.R. 2462 OF 2004
Ms. Fariha Hossain
Mr. Ayan Kumar Bhattacharyya
Mr. Md. Nurezaman
.. for the petitioner
The learned Advocate of the revitionist is present.
None come on behalf of the opposite parties Nos. 1 and 2,
despite affidavit of service as well as the acknowledgement due card
showing LTI purported to have been given by Nasira Bibi alias
Khatoon duly identified by one Sk. Hossain.
This revision arose out of an order dated 31.10.2013 passed in
Misc. Case No. 49 of 2001 by the learned Judicial Magistrate,
Hooghly under Section 125 of the Code of Criminal Procedure.
In the background of this revision application, the fact in a nutshell is as
follows :
The petitioner was forcibly taken away from his residence by the men of the
opposite party No. 1 and marriage was solemnized forcibly with the petitioner and
the opposite party no. 1 in 1978. The then political party forcibly kept Nasira in the
petitioner's residence. There was no relation between the petitioner and Nasira as
husband and wife and within two months she left the house of the petitioner. In 1979
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a salish/ predivorce conference was made at the instigation of the opposite party no.
1.The opposite party no. 1 has taken divorce from the petitioner by mutual consent and the petitioner paid demohar as well as the maintenance of iddat period to the opposite party no. 1 and a talaknama was written and marriage was dissolved in presence of the witness and the petitioner put his signature and opposite party no. 1 also put her LTI along with some other relatives.
It was admitted that talak was made by mutual consent and the opposite party no. 1 surrendered the future payment of maintenance.
On 26.4.1993 the opposite party no. 1 married to one Mukbul Islam son of Sk. Akbar Islam of Village Faridpore, Post Office Sati Thak, Police Station Dadpur, District Hooghly and their marriage was registered before the Marriage Registrar at Pandua, Hooghly. It is unfortunate that the opposite party no. 1 filed an application being M.C. case No. 49 of 2001 under Section 125 of the Code of Criminal Procedure against the petitioner by making false statement and she did not come with clean hand and suppressed material fact of her remarriage with Sk. Mukbul Islam. The said case was heard by the learned Judicial Magistrate, 1st Class , 3rd Court, Hooghly. On 31.10.2003 the learned Magistrate passed order of maintenance of Rs. 300/- from the date of application. The learned court held the marriage was dissolved. The opposite party no. 1 never challenged the said order. 3
But the petitioner challenged the said order before the learned Additional sessions Judge, Hooghly in Criminal Motion No. 6 of 2004 and the said application was finally heard and order passed by the learned Magistrate was affirmed.
The petitioner challenged the said order and filed an application being CRR 2642 of 2004 before the Hon'ble High Court at Calcutta and the case is pending.
The opposite party no. 1 filed an application under Section 127 of the Code of Criminal Procedure for enhancement of maintenance being M.C. case No. 12 of 2008 by suppression of fact and the petitioner made objection against the said application that the opposite party no. 1 was a divorced wife and she remarried one Mukbul Islam. As such she was not entitled to get maintenance and the application is not maintainable and is liable to be set aside. The petitioner attached voter list of Bara Mullickpur. It appears that the name of the opposite party no. 1 is Nasira Bibi and her father's name is Late Sk. Sabar Ali and her photograph is also there. Thereafter witnesses were examined and marriage certificate of Sk. Mukbul Islam and opposite party no. 1 were also exhibited and Marriage Registrar also adduced evidence but the learned Judicial Magistrate 3rd Court, 1st Class, Hooghly passed an order on 23.2.2009 enhancing maintenance amount to Rs. 600/- per month from Rs. 300/-.
Thereafter the petitioner challenged the said order before the learned Additional Sessions Judge, 3rd Court, Hooghly in Criminal Motion No. 81 of 2010 4 and the learned Judge passed an order on 12.8.2010 dismissing the petitioner's application and affirming the order of learned Magistrate.
The learned Judicial Magistrate held the marriage dissolved in the application filed under Section 125 Code of Criminal Procedure and the opposite party no. 1 is a divorced wife. Never she challenged the same. Thereafter she remarried one Sk. Mukbul Islam and Kabilnama of Mukbul Islam and opposite party no. 1 has also been produced and exhibited. It will be evident from the Nikha Nama that Nasira Khatoon daughter of Late Sabar Ali is very much there and not Nazira Khatoon. Therefore, the finding of the learned Judge is illegal.
It was contended by the learned Advocate of the petitioner that the learned Magistrate erred in holding that Nazira Khatoon is shown in certified copy of Nikha Nama. The said statement is totally wrong because in the Nikha Nama only Nasira Khatoon daughter of Late Sk. Sabar Ali has been shown and not Nazira Khatoon and, therefore, there is no question that Nasira and Nazira are the same and identical person. So the entire finding is erroneous. The learned Court failed to appreciate that evidence of Marriage Registrar as well as the Nikha Nama Exhibited "A" proved the remarriage of opposite party no. 1 and she did not challenge her LTI on the Nikha Nama. There is no denial that the opposite party no. 1 has not remarried Sk. Mukbul Islam. The learned court below failed to apply procedure of law under Section 311 as well as 311A of the Code of Criminal Procedure.
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It was contended by the learned advocate of the petitioner after drawing my attention to the certified copy of the Marriage Certificate issued in the form of entries of register "A" Book (1) showing that the opposite party no. 1 subsequently on 26.4.1993 married one Mukbul Islam. Therein her LTI was given. In absence of any counter challenge, I accept the contention that the opposite party no. 1 has remarried one Mukbul Islam.
The bone of contention of this case as appears from the submission of the learned Advocate of the petitioner hinges around the question as to whether the opposite party no. 1 is Nasira Bibi or Nazira Bibi. To strengthen the argument of the petitioner,the learned advocate drew my attention to the certified copy of the Marriage Certificate between Nasira Bibi and Mukbul Islam and submitted that the name and addresses of both the petitioner and the opposite party no. 1 tallied with reference to all other materials furnished earlier. Further it was contended by the learned Advocate that the opposite party no. 1 in the court below could not establish the fact that opposite party no. 1 is not actually Nasira Bibi but a different one in the name of Nazira Bibi. Further the learned Advocate of the petitioner drew my attention to the Xerox copy of the voter list at page 33 showing that the name of the opposite party no. 1 Nasira Bibi daughter of one Sk. Sabar Ali. This matches completely with the description given by the petitioner.
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It is a settled law that a divorcée in case of remarriage to other person, is not entitled to seek for any maintenance not to speak of launching any prayer for enhancement of maintenance from her former husband who has given divorce to her. So the opposite party no. 1 is also not entitled to get any maintenance in any manner whatsoever.
This being the position and coming no contrary argument from the opposite party no. 1, I have no alternative but to concede to the submission of the learned advocate of the petitioner.
Accordingly, I find that the revision deserves to be allowed and, as such, the same stands allowed.
The impugned order dated 12.8.2006 passed by the learned Additional Sessions Judge, 3rd Court, Hooghly in Criminal Motion No. 21 of 2010 arising out of an order dated 23.2.2010 passed by the learned Judicial Magistrate in MC Case No. 13 of 2008 under Section 107 stands set aside.
Let a copy of this order be set to the court below at once.
Let Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
7( Toufique Uddin , J)