Atashi Sen vs Jayanta Sen and Another

Debiprasad Sengupta, J.—This revisional application is directed against an order dated 21-2-2000 passed by the Id. Additional Sessions Judge, First Court, Alipore in Criminal Motion No. 327/99 thereby setting aside the order of maintenance passed by the Sub-Divisional Judicial Magistrate, Alipore in Criminal Misc. Case No. 783 of 1987. On an application u/s 125 Criminal procedure Code filed by the present petitioner/wife. The Id. Magistrate by his order dated 10-6-99 directed the present opposite party No. 1 to pay an amount of Rs. 1000 per month towards the maintenance of the present petitioner from 16-9-97 i.e. from the date of filing of the application. Challenging the said order the present opposite party No. 1/husband preferred a revisional application before the Id. Sessions Judge. By the impugned order the Id. Additional Sessions Judge, First Court, Alipore allowed the revisional application and set aside the order passed by the Id. Magistrate.

The Id. Advocate appearing Tor the petitioner submits that from the evidence on record it becomes clear that the present petitioner/wife immediately after marriage was subjected to torture and ill-treatment by her husband and other in laws. When the petitioner became pregnant for the first time she was not provided with proper treatment. She was admitted to Bijoynagar Hospital on 14-9-96 and her first issue miscarried. After being released from the hospital she went to her matrimonial home and lived with her husband. She conceived for the second time and she was admitted to Bijoynagar Hospital on 17-1-97. It was specifically alleged that neither the present O.P. nor the any of the in-laws of the petitioner met her in the hospital. On 20-1-97 the elder brother of the petitioner took her to his house. From there they went to the house of the present opposite party and he refused to accept the petitioner. It is in the evidence that the opposite party had a workshop for plastic pipe manufacturing at Durganagar, Dum Dum. The present petitioner having no independent income prayed for maintenance from her husband. The Id. Magistrate after recording evidence and considering the income of the petitioner directed the present opposite party No. 1/husband to pay an amount of 1000/- per month as maintenance.

From the impugned order passed by the Id. Additional Sessions Judge, by which the order of maintenance as aforesaid was set aside, it appears that the Id. Judge held that the wife is not entitled to get any maintenance though admittedly she had no sufficient income to maintain herself because she did not desire to have the company of her husband being instigated by her elder brother.

The Id. Advocate of the petitioner submits that on the evidence on record it is clear that there was torture and ill-treatment by the husband and in-laws. It is further submitted by him that there are sufficient grounds for the wife to live separately from her husband and in such circumstances the Id. Judge was very much wrong in setting aside the order of maintenance passed by the Id. Magistrate. In support of his contention the Id. Advocate relies on a judgment of the Hon''ble Apex Court reported in AIR 1981 SC 1972 (Sirajmohmed Khan vs. Hafisunnisa). From a reading of the said judgment it appears that it was held by the Hon''ble Supreme Court that where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband''s parents or relations, such apprehension would be a reasonable justification for the wife''s refusal to live with her husband. The Id. Advocate of the petitioner next relies upon a judgment of Bombay High Court reported in 1991 CLJ 1932 (Mustafa Sliamsuddin Shaikh vs. Shamshad Begum). In the said judgment it was held by the Division Bench of Bombay High Court that in a proceeding u/s 125 Criminal procedure Code it is not necessary for the court to ascertain as to who was in the wrong and whether the wife was guilty of leaving the matrimonial house without any reason. Even assuming that the wife is in the wrong while leaving the house, she cannot be deprived of maintenance when the husband contracts a second marriage. It was further held by the Division Bench that a right to claim of maintenance under the Code is not dependent upon who was right and who was wrong in the matrimonial disputes. The Magistrate is duty bound to award maintenance once it is found that the wife is unable to maintain herself and her husband having sufficient means neglects or refuses to maintain the wife. The Id. Magistrate is not required to examine whether the conduct of the wife initially leaving the house was just or not. The conduct of the wife at the time of leaving the house is wholly irrelevant and the Magistrate must concentrate on the facts and circumstances existing on the date of passing order on application filed u/s 125 Criminal Procedure Code.

The Id. Advocate of the petitioner also relies upon a judgment of this court reported in 1996 Cal CLR (Cal.) 179 (Manju Roy Sarkar vs. Narendra Roy Sarkar). On a perusal of the said judgment it appears that the said judgment was delivered by the Id. Single Judge of this court in the facts and circumstances of that particular case, which is totally different from the present one. I am of the view that the said judgment has got no application in the present case.

Mr. Bose the Id. Advocate appearing for the opposite party No. 1/ husband submits that in the present case the wife having no sufficient reason to live separately from her husband, is not entitled to get any maintenance from her husband. According to Mr. Bose repeated offers were given to the wife by her husband but she refused to accept the same and in such circumstances the Id. Judge was very much justified in setting aside the order of maintenance passed by the Id. Magistrate.

I have heard the Id. Advocates of the respective parties. I have perused the impugned order passed by the Id. Additional Sessions Judge and I have also perused the entire evidence on record. From a perusal of the impugned order it appears that the Id. Judge disbelieved the allegation of torture and ill-treatment inflicted upon the present petitioner/ wife on the ground that such torture or ill-treatment was never reported to the police station nor it was ever reported to any of the surrounding neighbors. In my opinion such finding by the Id. Judge is not at all correct. It is not at all expected that a house wife will go and report to the police station each and every incident of torture and ill-treatment by her husband and in-laws. From the evidence of O.P.W. 2 Renuka Chakraborty it appears that such ill-treatment was reported to O.P.W. 3 who is a neighbor of her in-laws house. The wife has come up before the Id. Magistrate with specific allegation of torture and ill-treatment and adduced sufficient evidence in support of the contention. But the Id. Judge simply because of the reason that such incident was not reported to the police, disbelieved such allegation made by the present petitioner. From the evidence on record I do not find anything from which the Id. Judge was satisfied and came to the conclusion that the present petitioner is living at her elder brother house at the instigation of her elder brother.

After going through the impugned order as also the evidence on record I am of the view that the Id. Judge was very much wrong in setting aside the order of maintenance. This is a case in which the marriage is not disputed. It is also not disputed that the wife is living separately from her husband. The husband being an able-bodied person having sufficient means has got a moral obligation to maintain his wife. Even assuming that the husband offered to the wife to live with him and such offer was refused by the wife, such refusal by the wife cannot deprive her from getting maintenance. The husband also simply because he offered the wife to live with him, cannot escape from his liability to maintain his wife. In my opinion in the present case the wife having no independent income to maintain herself, is entitled to get maintenance from her husband.

I find sufficient merit in the submission of Id. Advocate appearing for the petitioner. Accordingly the revisional application is allowed and the impugned order dated 21-2-2000 passed by the Id. Additional Sessions Judge. First Court, Alipore in Criminal Misc. Case No. 327 of 1999 is hereby set aside. The amount of maintenance fixed by the Id. Magistrate is quite reasonable. Accordingly I direct that the present opposite party No. 1/husband shall go on paying an amount of Rs. 1000/- per month towards the maintenance of the present petitioner/wife from the date of filing of the application u/s 125 Criminal procedure Code as directed by the Id. Magistrate.