Calcutta High Court (Appellete Side)
Moajjem Hossain vs Mst. Sabina Khatun & Anr on 2 December, 2009
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 1296 of 2006 Moajjem Hossain versus Mst. Sabina Khatun & Anr.
For Petitioner : Mr. Taimur Hossain
Ms. Shivani Bhagat
For Opposite Party Mr. Rabiul Islam
Mr. Shamim-Ul-Bari
Heard On : November 25th, 2009.
Judgment On : 02-12-2009.
In this criminal revision, the Judgement and order passed in connection with a maintenance proceeding under Section 125 of the Code of Criminal Procedure, awarding a sum of Rs. 500/- to the opposite party no. 1 and a sum of Rs. 300/- to her minor son as their monthly maintenance, is under challenge.
2. Heard the Learned Counsels appearing on behalf of the parties. Perused the impugned order as well as the materials on record and more 2 particularly the deposition of the witnesses recorded during the course of the maintenance proceedings.
3. It appears from the submissions of the leaned advocate of the petitioner as well as the pleadings in the revisional application the Judgement has been questioned, so far that relates to awarding of maintenance to the wife/opposite party is concerned, on the ground that the petitioner has already divorced her and as such she being a divorced Muslim wife not entitled to any maintenance from the petitioner, her former husband. Whereas, the granting of maintenance for the minor child of the opposite party has been challenged on the ground that the paternity of the petitioner in respect of the child has not been established.
4. Now, having gone through the materials on record, I find that the question of Talak has been disputed by the wife/opposite party and on the face of such dispute nothing has been brought on record to establish the factum of Talak. Thus, without the factum of Talak being proved there is no question of denying the opposite party from her right to maintenance on the mere claim of the husband that he had given Talak to her. Since, the factum of Talak has not been established the Learned Magistrate was fully justified in awarding maintenance in favour of the opposite party/wife. According to the evidence of the wife/opposite party after marriage she was regularly subjected to torture at her matrimonial home by the husband on demand of dowry and on her failure to fulfill such demand she was driven out from her matrimonial home. It is her further evidence that she has no means to maintain herself while the husband in 3 spite of having sufficient means neglected to maintain her. I find her such evidence could not have been shaken in any way during her lengthy cross- examination. I am satisfied from the materials on record, the husband/petitioner in spite of having sufficient means neglecting to maintain the wife/opposite party, who has no means to support her.
5. Now, the next question comes up for consideration whether the Learned Court below was justified in awarding maintenance for the son of the opposite party/wife when the petitioner challenged his paternity. According to the evidence of the wife/opposite party after marriage for first 6 months she was residing at her matrimonial home, thereafter she never went there and her husband never took any information about her. It is her further evidence that at the time of deposing in Court the age of her child was 4 and half years and at the time of filing this maintenance case his age was about 6 months. According to her she gave birth to the child two years after she went to her parents home. Now it appears from her application for maintenance filed on May 9, 2001 that their marriage was solemnized on July 4, 1998, thus, she left her matrimonial home sometime in January, 1999. Now, according to her evidence when she filed the maintenance application her son was aged about 6 months. The maintenance application was filed in May, 2001 that means her son was born sometime in November, 2000. Now, if the son was born in November, 2000 in all probability she conceived sometime in January, 2000 nearly after about one year from the date when she left her matrimonial home. Top of everything it was her evidence that she gave birth to the child nearly after 2 years, she was driven out 4 from her matrimonial home. Thus, on the face of the evidence on record, it does not appear that the paternity of the petitioner has been established so far the child is concerned. Therefore, the Leaned Magistrate was not justified in awarding maintenance in favour of her son. Accordingly, the order awarding maintenance for the son of the opposite party cannot be sustained.
In the result, this criminal revision partly stands allowed. While the order awarding maintenance to the wife/opposite party stands sustained, such order as regards to her minor son stands set aside. Interim order, if any, stands vacated.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
( Ashim Kumar Roy, J. )