Calcutta High Court (Appellete Side)
Jalal Ali Molla vs Nasima Bibi & Anr on 4 March, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. No.3799 of 2017
Jalal Ali Molla
-Versus-
Nasima Bibi & Anr.
Advocate for the Petitioner : Mr. Tanmoy Chowdhury
Mr. Bikram Banerjee
Mr. Sudipta Dasgupta
Ms. Somsubhra Ganguly
Advocate for the Opposite Party no.1 : Mr. Saibal Mondal
Heard on : 22.02.2019
Judgment on : 04.03.2019
Madhumati Mitra, J. :
This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure 1973 filed by the petitioner challenging the impugned judgment and order dated 25th October, 2017 passed by 2 the Learned Additional Sessions Judge, Fast Track 1st Court, Diamond Harbour in Criminal Motion no. 70 of 2016 (CIS No.11/7). By the impugned judgment and order, Learned Additional Sessions Judge was pleased to allow the Criminal Motion No.70 of 2016 in part and modified the judgment and order dated 20.06.2016 passed by the Additional Chief Judicial Magistrate, Diamond Harbour in Misc.Case No.417/09 directing the present petitioner who was the opposite party of Misc.Case No.417/09 to pay the arrear maintenance in 15 (fifteen) consecutive equal instalments.
Present opposite party filed an application under Section 125 Cr.P.C. claiming maintenance for self and her minor children. Admittedly the present opposite party is the legally married wife of the petitioner. It is also an admitted fact that the present petitioner who was the opposite party of the application under Section 125 Cr.P.C. works for gains at Oman.
Learned Magistrate in his order dated 20.06.2016 directed the present petitioner husband to pay maintenance at the rate of Rs.4,000/- (Rupees Four Thousand Only) per month to the wife i.e present opposite party and at the rate of Rs.2,000/- (Rupees Two Thousand Only) each towards the maintenance of the minor children since the date of filing of the application under Section 125 Cr.P.C. i.e. on and from 31.08.2009. Petitioner husband was also directed by the 3 learned Magistrate to pay the arrear maintenance in 5(five) equal instalments.
Present petitioner challenged the order of maintenance passed by the learned Magistrate by preferring Criminal Motion being no.70 of 2016. Order of maintenance passed by the learned Magistrate was affirmed by the Additional Sessions Judge with only modification that the arrear of maintenance would be paid by 15(fifteen) consecutive equal instalments instead of 5(five).
This is a case under Section 125 of Code of Criminal Procedure, wife's claim for maintenance for herself and her two minor children was allowed by the learned Magistrate as well as by the learned Additional Sessions Judge in criminal motion with modification regarding mode of payment of arrear maintenance.
Admittedly the petitioner of the instant application challenged the order passed by the learned Magistrate in revision.
The 1st question as raised by the learned Advocate for the opposite party is whether a petition under Section 482 of the Code of Criminal Procedure can be entertained to review a judgment passed in revision. He has contended that the revisional application preferred by the petitioner was dismissed by the learned Additional Sessions Judge 4 and the order of maintenance was affirmed, the present application is nothing but a second revision which is not maintainable in view of Section 397(3) of the Code of Criminal Procedure.
In this connection a decision of Hon'ble Apex Court in Krishnan Vs. Krishnaveni reported in (1997) 4 SCC 241 may be cited. Similar question was raised before the Hon'ble Supreme Court whether a second revision in the form of Section 482 Cr.P.C. after dismissal of the 1st one by the Court of Sessions is barred under Section 397(3) Cr.P.C. Our Apex Court was pleased to observe that an application under Section 482 Cr.P.C. after dismissal of revisional application by the Session Judge can be entertained and is not barred under Section 397(3) Cr.P.C. Though in view of provision contained in sub-Section 3 of Section 397 Cr.P.C. a second revision is barred, but inherent power of the High Court can be exercised under Section 482 of Cr.P.C. in appropriate cases.
The power of the Court under Section 482 has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the Section itself. These are the three circumstances under which the inherent jurisdiction may be exercised, namely:-
I. To give effect to an order under the Code;
II. To prevent abuse of the process of Court; and III. To otherwise secure the ends of justice.5
Now the question comes whether the present case is covered by any of the circumstances mentioned above.
Impugned judgment and order of maintenance has been assailed on various grounds. Learned Advocate appearing for the petitioner husband has contended that the petitioner husband works for gain at Oman and he was not given adequate opportunity of being heard and he was not allowed to adduce evidence. He has submitted that the impunged order of maintenance requires to be set aside and the matter be sent back on remand with direction to the learned Magistrate to give opportunity to the petitioner husband to adduce evidence in support of his case. On the contrary learned Advocate for the opposite party-wife has invited the attention of the Court to the judgment passed by the learned Magistrate. From page 3 of the judgment of the learned Magistrate it appears that the evidence of petitioner of the application under Section 125 Cr.P.C. was completed on 10.01.2013 and thereafter several dates till 3rd March, 2016 were fixed to record the evidence of husband i.e. the present petitioner, but he did not turn up as a witness. Learned Magistrate was pleased to observe that there was no initiative on the part of the husband to depose as witness in support of his case. This portion of the judgment of the learned Magistrate has not been controverted by the learned Advocate of the petitioner. As such the 6 submission made by the learned Advocate that the petitioner-husband was not given opportunity to adduce evidence has no basis at all.
Second contention of the learned Advocate for the petitioner is that the wife is not entitled to get maintenance as she is living in adultery in view of the provisions contained in Section 125(4) of the Cr.P.C. In the instant case in spite of several opportunity petitioner (husband) did not appear before the Magistrate for adducing evidence to prove the allegation of adultery, though three witnesses were produced and fully examined in his favour.
Here the husband in answer to wife's claim for maintenance takes the plea of wife's adultery and fails to substantiate it. Husband did not bother to appear on dock to depose in support of his allegation of adultery though he got more than three years after the completion of the evidence of his wife to depose in support of his specific allegation that his wife lives in adultery. Petitioner-husband also raised question regarding the legitimacy and paternity of the second child of the petitioner. From the materials on record it appears that the wife claimed that she was pregnant when she was driven out from her matrimonial home.
According to Section 112 of the Evidence Act a child born in the wedlock should be treated as the child of the person who was at the 7 time of the birth, the husband of the mother unless it is shown that he had no access to the mother at the time of her conception. The presumption under Section 112 of the Evidence Act is one of the strongest presumptions, yet it is rebuttable by proof of non-access. Here the husband failed to discharge the said burden by adducing, convincing and cogent evidence that he had no access with his wife at the relevant point of time. Moreover the petitioner-husband withheld himself to be examined and cross-examined on the point of paternity of the second child of the petitioner.
The allegation of adultery has not been proved by the petitioner- husband before the learned Magistrate. The question of application of Section 125(4) Cr.P.C. does not arise at all in the present case.
Learned Advocate for the petitioner has further contended that the learned Courts below committed an error not considering the actual income of the petitioner-husband. According to his submission the income of the husband is only Rs.10,000/- (Rupees Ten Thousand Only) per month and as such the quantum of maintenance of Rs.8,000/- (Rupees Eight Thousand Only) in total is exorbitant and moreover the wife has failed to prove the income of the husband by adducing cogent evidence. It is true that the opposite party-wife has not produced any document regarding the income of her husband. At the same time it cannot be ignored that the petitioner himself did not 8 come forward to show his actual income is Rs.10,000/- (Rupees Ten Thousand Only) per month. Conduct of the petitioner shows that he is playing hide and seek game with the Court. Learned Magistrate after considering the fact that husband is working at overseas and other relevant circumstances determined the quantum of maintenance. The quantum of maintenance as determined by the learned Magistrate is quite justified and reasonable considering the present market price.
On careful scrutiny of the judgments passed by both the learned Courts below it appears that the present petitioner had agitated all the points as raised before this Court earlier before the learned Courts below. The issues as raised by the petitioner before the learned Courts below were decided by the Courts after appreciating the evidence on record and assigning reasons.
Learned Advocate appearing for the petitioner has assailed the impugned order on another ground. He has prayed for modification of the impugned order by directing the petitioner to pay maintenance not from the date of filing of the application under Section 125 Cr.P.C. but from the date of the impugned order passed by the learned Magistrate. It has been contended by the learned Advocate appearing for the petitioner-husband that the learned Magistrate has not assigned any reason for granting of maintenance to the present opposite party-wife and her minor children from the date of the filing of the application. It 9 is his specific contention that the maintenance order passed under Section 125 Cr.P.C. generally becomes effective from the date of the order not from the date of the filing of the application unless specific reasons is assigned by the learned Magistrate.
Sub-Section 2 of Section 125 of the Cr.P.C. provides that the maintenance allowance is payable from the date of the order, or if so ordered, from the date of the filing of the application for maintenance. It has been argued that the learned Courts below ought to have passed the maintenance allowance with effect from the date of the order. Learned Courts below allowed the maintenance to the opposite party- wife and her children by mentioning that the order of maintenance would be effective from the date of filing of the application for maintenance under Section 125 Cr.P.C. According to the contention of the learned Advocate appearing for the petitioner-husband the impugned order of maintenance passed by the learned Magistrate which was subsequently affirmed by the Additional Sessions Judge is not in accordance with the spirit of the statutory provision and is not tenable in the law as the learned Courts below failed to assign sufficient reasons for giving effect of the order of maintenance from the date of filing of the application.
In Shail Kumari Devi & Anr. Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak reported in AIR 2008 SC 3006, our Apex Court had 10 the occasion to consider while deciding an application under Section 125 of the Code, a Magistrate is required to record the reasons for granting or refusing to grant maintenance to wife, children or parents, such maintenance can be awarded from the date of the order or if so ordered from the date of the application for maintenance as the case may be.
In paragraph 47 of the said judgment our Apex Court was pleased to hold that for awarding maintenance from the date of the application expressed order is necessary. No special reasons, however, are required to be recorded by the Court. According to our Apex Court no such requirement can be read in sub-Section 1 of Section 125 of the Code in absence of expressed provision to that effect.
Similar view was taken earlier on by High Court in Nitya Ranjan Chakraborty Vs. Kalpana Chakraborty reported in 2002 Cr LJ 4768 in paragraph 4 of the said judgment it was held that the omission to assign any reason for granting maintenance order from the date of the application should not be carried to the extent of being taken as a ground for rendering the order liable to be set aside, if otherwise it is in order.
In paragraph 6 of the above referred judgment the Hon'ble Court was pleased to observe as under:
11
"The wife filed the application as far back as in the year 1994 with an expectation that she would get maintenance as prayed for on that very day, but hearing of the matter was delayed and ultimately it came to be taken up at the long last in 2001 i.e. after the passage of 7 years and if the petitioner is otherwise found to be entitled to get such benefit, question will arise as to why then she should not be given this benefit during the period throughout which that petition has been pending before the Court without being disposed of. In other words, there was no justifiable ground for which she can be kept deprived of getting this benefit for such a long period. To put it in a different language, in such an event his getting the benefit will depend on sheer chance and accident that is to say, if the petition could be taken up for hearing by the Court immediately after the filing thereof and she was found entitled, then she could have reaped the harvest of benefit 7 years ago. But simply because accidentally the petition was not taken up so early, the complexion of the consequences would be otherwise. That apart, there is another aspect of the matter. If such a view is accepted, that may set a dangerous trend. Cases may appear in leaps and bounds where the husbands would exploit such a dictum by deferring the hearing of the matter to the greatest extent possible. In view of these reasons there will be absolutely no justification to 12 come to a finding that the maintenance to which the wife is found entitled should not be awarded with effect from the date of application."
In the present case the wife approached before the Magistrate for the maintenance not only for herself but for her two minor children in the year 2009. Her said prayer for maintenance was allowed in the month of June, 2016, it took above 7 (Seven) years to dispose of the application for maintenance.
In the instant case the conduct of the husband shows that he is responsible for the delay in disposal of the application for maintenance and said conduct of the husband was reflected in the judgment passed by the learned Magistrate. In the present case, I do not find any reason to give effect to the order of maintenance from the date of the impugned order. Learned Magistrate has rightly directed the husband to pay maintenance to his wife and children from the date of the filing of the application for maintenance under Section 125 Cr.P.C. Arrear of maintenance was accumulated as the petitioner under Section 125 Cr.P.C. was kept pending due to the conduct of the husband. I also reiterate the same view expressed by this Court in the 13 judgment of Nitya Ranjan Chakraborty Vs. Kalpana Chakraborty as reflected in paragraph 6.
Findings of facts by the learned Courts below in maintenance proceeding cannot be reversed or disturbed by invoking inherent power under Section 482 of the Code of Criminal Procedure in absence of cogent and justified reason. Moreover, nothing has been shown by the petitioner that the concurrent finding of fact by the learned Magistrate and learned Additional Sessions Judge is improper and occasions a failure or miscarriage of justice.
In the instant case the finding of fact that the husband had neglected and refused to maintain his wife and two children based upon proper appreciation of evidence.
Considering the submission and rival submission of the parties as well as from the materials on record I am of the view that it is not a fit case to exercise the inherent power under Section 482 of the Cr.P.C. The application filed by the petitioner is devoid of merit and accordingly stands dismissed.
(Madhumati Mitra, J.)