Calcutta High Court (Appellete Side)
Achintya Bag vs Unknown on 11 March, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 11.03.2011 (3) mb C.R.R. 1952 of 2009 In Re.: An application under Section 401 read with Section 482 of the Code of Criminal Procedure filed on 22nd May, 2009.
In the matter of : Achintya Bag Mr. Jayanta Das............................for the petitioner Mr. Kallol Mondal..........................for a the O.P. no. 1 The challenge in this revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure is to the order dated 23.3.2009 passed by the learned Additional Sessions Judge, 4th Court at Paschim Midnapur in Criminal Revision No. 5 of 2009 whereby modifying the orders dated 4.11.2008 and 15.11.2008 passed by the learned Additional Chief Judicial Magistrate at Ghatal, Paschim Midnapur in Misc. Case No. 54 of 2007.
The opposite party no. 1, Sulata Bag (Pramanik), the legally married wife of the petitioner, initiated a criminal proceeding under Section 125 of the Code of Criminal Procedure against the petitioner herein praying for maintenance of Rs.4000/- per month. That prayer was opposed by the petitioner herein by filing a written objection thereto. The matter was disposed of on merit by the learned Magistrate on 15.11.2008 whereby the learned Magistrate awarded monthly maintenance in favour of the opposite party-wife to the tune of Rs.4,000/- per month. That order of the learned Magistrate was challenged in a 2 criminal revision, being Criminal Revision No. 5 of 2009. The learned Additional Sessions Judge, 4th Court, Paschim Midnapur, upon consideration of the case of both the parties and upon hearing of the learned advocates for the parties was pleased to allow the revisional application in part and passed a modified order whereby he reduced the maintenance amount to Rs.3000/- per month from Rs.4000/- per month. The present petitioner-husband being unhappy with the quantum of maintenance amount reduced by the learned first Revisional Court, has taken out this application with a view to get the maintenance amount more reduced.
Mr. Jayanta Das, learned advocate appearing on behalf of the petitioner, submits that the learned first Revisional Court did not consider the evidence recorded by the learned Magistrate at the time of fixing quantum of maintenance. He himself passed the order in the matrimonial suit and considered that judgment passed by him at the time he reduced the maintenance amount to Rs.3000/- from Rs.4000/- per month. He also submits that since the petitioner has no steady income, he is not in a position to pay Rs.3000/- per month for the purpose of maintenance of his wife. Mr. Das submits that the amount of maintenance so awarded by the learned first Revisional Court is to be reduced more so that his client would be in a position to pay the same.
Mr. Kallol Mondal, learned advocate appearing on behalf of the O.P. no. 1, submits that the learned first Revisional Court, in fact, did not consider evidence at all and unnecessarily reduced the maintenance amount to 3 Rs.3000/- from Rs.4000/- per month without assigning any specific reason. The maintenance amount ought to have been increased, considering the fact that the petitioner herein earns Rs.14,000 -15,000 per month.
Admittedly, the opposite party is the wife of the petitioner herein and that she is having no means to maintain herself and that she lives separately. It has also not been denied in course of trial as well as before the first Revisional Court that the petitioner is a quack doctor and having some practice. Although, in a second revision, the jurisdiction of this Court is very restricted, I think that while the only question arises relating to quantum of maintenance, this Court can look into the order passed by the learned Magistrate and evidences recorded by him.
On perusal of the evidence, I find that the petitioner was found to be an able bodied man and have a stable practice. It was the specific case of the wife- O.P. that the petitioner-husband ears Rs.20,000/- per month from his profession and his having a permanent residence. That evidence of the wife- O.P. was supported by her father, P.W. 2. The petitioner herein examined himself as O.P. no. 1 in the Court of learned Magistrate where he stated that his income is only 1500/1600 per month. He denied that he earns Rs.20,000/- per month from his practice as a quack doctor. No one has come forward to support his statement and case. The learned Trial Court upon consideration of the evidences, found that the opposite party should pay Rs.4000/- per month as he is a quack doctor and able bodied man having no other obligation to discharge.
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The learned first Revisional Court, however, did not consider all the evidence at all. It found that in a matrimonial suit the learned Judge granted Rs.3000/- per month as maintenance. Therefore, he reduced the amount of maintenance to Rs.3000/- from Rs.4,000/- per month. However, he considered the total income of the petitioner-husband.
I find no reason, whatsoever, to interfere with the order passed by the learned first Revisional Court. It is true that the quantum of maintenance amount is to be fixed by Court considering the need of the wife and ability of the husband. There cannot be any debate on the fact that a lady, having no means, requires a square meal, medical expenses and other expenses to meet the daily need. Considering the price index and cost of living and considering the fact that the opposite party is the wife of a doctor (quack), having practice in the area, obviously a known and popular man, deserves to lead a life upto that standard and her minimum need should not be less than Rs.3000 per month. As far as capability of the petitioner-husband is concerned, I find that it is admitted position that he is a quack doctor having practice. No one supports his case that he earns only Rs.1500/1600 per month. It can well be assumed that the husband-petitioner obviously earns more than what he claimed. Besides that, he is an able bodied man and is under legal and moral obligation to maintain his wife according to the standard she deserves.
Considering the above facts, I think that Rs.3000/- per month towards maintenance of the opposite party-wife appears to be reasonable one and, as such, the order of the first revisional Court is not required to be upset. 5
This application is, accordingly, disposed of.
There will, however, be no order as to costs.
Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.
(Kanchan Chakraborty, J)