Calcutta High Court
Ali Hossain vs Baby Farida Khatoon on 2 September, 1997
Equivalent citations: 1998CRILJ2762
ORDER Dibyendu Bhusan Dutta, J.
1. The instant revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure is directed against the Award of maintenance allowance passed in Case No. 100 of 1994 (T. Rule 190 of 1994) of the Second Court of Judicial Magistrate at Sealdah, Calcutta. The wife opposite party No. 1 filed the case under Section 125, Cr. P.C. against the husband petitioner claiming maintenance allowance at the rate of Rs. 900/- per month for herself and at the rate of Rs. 400/- per month for each of her two minor children alleging that the husband used to subject her to physical torture and drove her out of his house on 25-4-93 and that since then, she has been living with her minor son and daughter in her father's house and the husband did not provide any maintenance to her. The wife also alleged that the husband was an employee of Calcutta Electric Supply Corporation having an income of Rs. 3,500/- per month.
2. The husband as opposite party contested the case denying all the material allegations of the wife and contending inter alia that the wife opposite party voluntarily left the matrimonial house on 25-4-93 taking away all her belongings and that he was paying between Rs. 200/- and 300/- per month towards her maintenance.
3. Both parties led oral evidence in support of the respective cases during the trial. Besides herself, the wife opposite party examined her father, while besides himself, the husband petitioner also examined his father.
4. Upon consideration of the evidence on record, the ld. Magistrate believed the wife's case of torture and ill-treatment by the husband and disbelieved the case of the husband regarding the payment of maintenance allowance. He found that the husband was negligent in maintaining the wife and her children and that the wife was unable to maintain herself and her children.
5. In determining the quantum of maintenance allowance, the ld. Magistrate took note of the fact that the wife has not been able to produce any document in support of the alleged income of the husband. He also took note of the showcause of the husband in which the husband alleged that he was out of employment. The husband, however, during the trial claimed himself to be a rickshaw puller and also a casual labourer and the ld. Magistrate was of the view that it is not the duty of the wife to prove the monthly income of the husband, but it was for the husband to disclose his income. The ld. Magistrate took such a view relying on a Division Bench decision of this Court reported in AIR 1988 Cal 98; Chitra Sengupta v. Dhruba Jyoti Sengupta. But the ld. Magistrate did not consider the fact to have been proved by any convincing evidence. It transpired in evidence that the husband is aged about 25 years and was having a good health and physique- Since the husband was found to be an able bodied person, the ld. Magistrate presumed that he had sufficient means with which he can afford to maintain the wife and her children. Having regard to the means of the parties and also to the prices of the essential commodities, the ld. Magistrate was of the view that the ends of justice will be met if the husband is directed to pay maintenance allowance to the wife at the rate of Rs. 300/- for herself and at the rate of 200/- per month for each of her two children. Accordingly the ld. Magistrate by his impugned order passed an award against the husband.
6. At the time of hearing of this revisional application, Mr. Ganesh Srivastava, appearing for the husband petitioner, did not question the finding of the Magistrate regarding the petitioner' s liability to pay maintenance allowance under Section 125, Cr. P.C. to the wife opposite party No. 1 as well as her two children with effect from the date of the impugned order. The only challenge that was thrown against the impugned order was with regard to the quantum of maintenance allowance that was awarded by the ld. Magistrate. Mr. Srivastava argued that the impugned order was illegal and was liable to be set aside because of the fact that the ld. Magistrate did not actually determine the means of the husband petitioner. Mr. Srivastava contended that the husband may have obligation to maintain his wife and children but that does not necessarily mean that the husband is to starve in order to maintain his wife and children. It is further contended that the husband petitioner may be an able-bodied person, but that does not necessarily lead to the conclusion that he has the means to pay maintenance at the rates awarded by the impugned order. Mr. Srivastava submitted that the impugned order should be modified by reducing the quantum of maintenance allowance for a total sum of Rs. 700/- to a sum of Rs. 300/- per month.
7. Mr. Ainul Haque, ld. Advocate appearing for the wife opposite party No. 1 supported the impugned order and submitted that it does not suffer from any illegality, error or impropriety so as to justify any interference.
8. The point for my decision would be whether the impugned order calls for any interference and, if so, to what extent.
9. At the outset, I would like to refer to the decisions that were cited by Mr. Srivastava to bring home his point that the ld. Magistrate acted illegally in not recording his specific finding as to how much the husband petitioner earns. In Dhaniram Puri v. Rasheswari Puri reported in 1984 (2) Crimes 371, a single bench of the Orissa High Court held that the needs and requirements of the claimant for a moderate living, the earnings of the person from whom maintenance is claimed and his capacity to earn and his commitments are relevant factors while determining the quantum of maintenance.
10. In 1991 (2) Crimes 808; Chandrapal v. Harpyari, a single bench of the Allahabad High Court considered several decisions namely Prabhulal v. Parwatibai; 1952 (53) Cri LJ 868, Chameli v. Gajraj Bahadur; Ashish v. D.C. Tewari ; Mohammad Ayyub v. Zaibulnissa 1974 Cri LJ 1237 and Smt. Alimunissa v. State of U. P.; 1987 All Cri C 304 :(1987 All LJ 933) and summed up the following principles at paragraph 15 which, in his view, the said decisions would show :-
(i) The maintenance allowance allowable to the wife under Section 125, Cr. P.C. must have relevance to the means of the husband (ii) The Magistrate must discuss the evidence and determine the means of the husband for fixing the amount of maintenance (iii) Means not only mean the tangible property or sources of income of the husband but also mean his capacity, potentiality and status.
11. The last decision cited by Mr. Srivastava is a single bench decision of the Orissa High Court reported in 1982 Cri LJ 485; Basanta Kumari Mohanty v. Sarat Kumar Mohanty. He cited this decision for the purpose of showing which factors are relevant for determining the quantum of maintenance allowance under Section 125, Cr. P.C. According to this decision, the relevant factors are the needs and requirements of the wife and children for a moderate living, the earnings of the husband or his capacity to earn and his commitments. This decision also lays down the following principle on the question of interpretation of the word 'means' occurring in Section 125 thus; "It is well settled that the expression 'means' does not signify only visible means such as, real property or definite employment and if a man is healthy and able-bodied, he must be held to be possessed of means to support his wife, child etc. Even the husband may be insolvent or a professional beggar or a minor or a monk, but he must support his wife so long as he is ablebodied and can eke out his livelihood."
This decision relied on certain observations of a single Bench of Delhi High Court in Chandra Prakash's case corresponding to 1968 Cri. LJ 1153. The relevant observations are as follows at page 1155 (of Cri LJ):
An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.
12. Now, the decision of Delhi High Court in Chandra Prakash was dissented from by a single Bench of our High Court in Dasarathi Ghosh v. Anuradha Ghosh, reported in 1988 Cri. L.J. 64. Our High Court observed :- "There is really no such presumption in law and such a presumption cannot also be spelt out from the language of the Section 125, Cr. P.C." It further observed at paragraph 8. "Marriage is the normal state in this country and people who habitually live below the poverty line and even beggars marry in this country. Ordinarily such people cannot even maintain themselves in a proper way. Marriage does not endow them with any ability not only to maintain their own selves but also their wives in a proper way. In that view of the matter it is difficult to understand why from the very fact a person is able-bodied, it is to be presumed that he is in a position to pay sufficient maintenance to his wife, whether in fact he is in such a position or not. That will be going against the provision of the section itself which only saddles the husband with the burden of paying maintenance to his wife when he has sufficient means and yet neglects to do so."
13. It is now time for us to consider the parameters of the revisional powers of High Court which may, in essence, be sated as follows :
Under Section 397 read with Section 401 of the Code of Criminal Procedure, the High Court has full powers to satisfy itself not only as to the correctness and legality but also the propriety of any finding or order recorded or passed by the inferior Court. It has also powers to satisfy itself as to the regularity of any proceeding of that Court. The revisional power of the High Court is almost as wide as the powers of a Court of Appeal under Sections 385 and 386 but the High Court acting as a revisional Court is expected not to act as a Court of appeal. In an appeal, the appellant has a statutory right to demand an adjudication from the Court on questions of fact as well as law. The revisional jurisdiction is discretionary and this discretion is to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest illegality or error or flagrant miscarriage of justice. In Pathumma v. Muhammad the Supreme Court held that the High Court in its revisional jurisdiction is not justified in substituting its own view for that of the Magistrate on questions which are pre-eminently questions of fact. The power of interference is to be exercised most sparingly and only when the finding is based on no evidence or inadmissible evidence or is manifestly perverse or where a vital evidence has been overlooked. Every illegal order or error is, however, not to be set right nor its interference justified on technical ground. The mere fact that certain illegality or irregularity of procedure is committed or that erroneous view is taken will not be itself a ground to set aside the order unless it is shown that substantial injustice is done in any particular case which cannot be set right in another method.
14. Let me now examine the impugned order in the light of the principles enunciated above for the purpose of ascertaining whether any interference is really called for in the facts and circumstances of this particular case.
15. From the certified copies of the depositions filed on behalf of the husband-petitioner, I have perused the evidence that was led during the trial by the parties. It is true that the wife could have called for papers from the CESC to substantiate her case that the husband was employed in CESC on a monthly salary of Rs. 3500/- but did not take any such step as a result of which it can be said that her case regarding the monthly income of the husband was not proved by the best evidence. What remains on record, on this point, is oath versus oath - assertions of the wife and her father and denials of the husband and his father. But then the mere fact that the wife has not been able to effectively discharge the onus of proving the fact that the husband is employed in CESC on a monthly salary of Rs. 3,500/- does not necessarily saddle the wife with a further onus of proving the actual income of the husband. What the husband earns is obviously within the special knowledge of the husband himself, In the show cause petition, as it appears from the recitals of the impunged judgment, the husband's case was that he was out of employment. He did not at all disclose the nature and character of his occupation and earnings in the show cause. It is only during the trial that he came forward with a story that he is a regular rickshaw-puller and a casual labourer by occupation. His father, on the other hand, wanted to suggest as if his son is a regular labourer and a causal rickshaw-puller. But curiously enough, the husband did nowhere disclose in the evidence led by him as to how much he actually earns by his occupation - be it the occupation of a regular labourer and a casual rickshaw-puller or a regular rickshaw-puller and a casual labourer. The fact remains that the husband is an able-bodied young healthy man. This fact may not give rise to a presumption that he is capable of earning sufficient money and is in a position to pay sufficient maintenance to his wife and two children, as was held by our High Court in Dasarathi Ghosh's case (supra). But this much can be safely said that he has the capacity to earn and the fact that he has capacity to earn is also borne out by his own case during the trial. He himself claims that he is a regular rickshawpuller and casual labourer and does not care to disclose even the average daily income he earns when he works as a rickshaw-puller and also when he works as a casual labouer. This omission to disclose his own income would be sufficient to warrant an inference that he has capability of earning sufficient means and does earn sufficient income so as to pay sufficient maintenance to his wife and children. By the impugned order, he has been saddled with a liability to pay a total sum of Rs. 700/- per month for maintenance of his wife and his two children. In the facts and circumstances of this case, the amount awarded as maintenance allowance for three persons cannot be held to be excessive, unjust, unreasonable or improper. It is true that the ld. Magistrate did not attempt to record any specific finding as to how much the husband earns but this omission cannot be faulted particularly when the best person to enlighten the Magistrate on this point withheld the relevant data and it was not within the knowledge of the wife as to how much the husband does actually earn in case his real occupation is that of a regular rickshaw -puller and a casual labourer as claimed by him. The ld. Magistrate was certainly justified, in the facts and circumstances of this case, to take it for granted that the husband had the sufficient means to maintain his wife and children. In the circumstances, it cannot be argued on behalf of the husband petitioner that the impugned order would occasion a failure of justice or cause any substantial injury to the husband petitioner in so far as it fixed the total amount of maintenance allowance at Rs. 700/- per month.
16. Thus, giving the matter my due consideration, I am to hold that this is not a fit case for interference with the impugned order for its consequent modification as suggested on behalf of the petitioner.
17. In the result, the revisional application fails and is hereby dismissed. The interim order accordingly stands vacated.