Pradip Das (Sarkar) vs Uma Sarkar

This criminal revision petition is filed, under Section 397, 401 and 482 of the Code of Criminal Procedure, challenging the legality, propriety and

correctness of the judgment and order, dated 05-05-2009, passed by the learned Additional Sessions Judge, FTC, Biswanath Chariali, in Criminal

Revision No. 38(S-3) of 2007, setting aside the judgment and order, dated 20-06-2007, passed by the learned Sub-Divisional Judicial Magistrate (M),

Biswanath Chariali, in Misc. Case No. 9/2006, under Section 125 of the Cr.P.C.

I have perused the revision petition. I have also gone through both the judgments as well as the records of learned trial Court including the evidence

of the parties.

I have heard Mr. N.N. Upadhyaya, learned counsel for the revision petitioner and Mr. D. Das, learned counsel for the sole respondent.

The case of the respondent/wife is that after her marriage with the petitioner/husband, she was subjected to torture by the petitioner/husband as she

did not bring Rs.10,000/- as dowry as well as for her failure to meet some other demands for properties. She was subjected to torture from the very

first night of their conjugal life. She left her matrimonial house to enquire about the health of her cousin brother, who was suffering from cancer at the

relevant time, after about 3/4 months of her marriage, and thereafter, she did not return to the matrimonial home. She was not provided with

maintenance by the petitioner since she left her matrimonial home. Therefore, she filed the claim under Section 125 of the Cr.P.C. seeking

maintenance allowance from the petitioner/husband.

The petitioner/husband contested the claim of the respondent/wife and denied the allegations made against him in her petition. However, in the

evidence led by him, there is no whisper that he did not subject his wife, respondent herein, to torture.

Whatever it may be, the learned Sub-Divisional Judicial Magistrate (M), Biswanath Chariali, on examination of the evidence on record and upon

hearing both sides, dismissed the claim, under Section 125 of the Cr.P.C., made by the respondent/wife on the ground that she failed to establish her

case. However, on revision, the learned Additional Sessions Judge, FTC, Biswanath Chariali, vide judgment, impugned in this petition, has allowed the

petition of the respondent/wife and granted her monthly maintenance of Rs.1,000/- from the date of filing of the application.

It appears from the entire materials, examined by this Court, that it is not in dispute that the respondent is the legally married wife of the petitioner.

Further, there is no dispute that she is living separately from the present petitioner/husband. There is also no dispute that while living separately, the

respondent/wife was not provided with maintenance by the petitioner/husband.

On examination of the judgment of the learned the learned Additional Sessions Judge, referred to above, together with the evidence on record, it

transpires that while the respondent/wife left on her own the house of the petitioner/husband with a view to enquire about the health of her cousin

brother, she did it with the permission of the petitioner/husband. However, she did not return. In her evidence she has categorically stated about the

torture meted out to her by the husband due to failure to meet the demand of dowry of Rs.10,000/- and the other demands. On the contrary, the

evidence of the petitioner/husband is to the effect that she left his house on her own although did not deny the allegation of torture. So, the evidence on

record, as a whole, means to show that while there is an allegation of torture on the wife/respondent by the petitioner/husband, the fact remains that

she was not driven out by her husband and she left on her own. This fact is not denied by the petitioner/husband and as such remained intact. This

Court is also mindful of the fact that the respondent/wife left the company of the petitioner/husband within 2/3 months of their marriage and in the

back of her mind, the fact that she was subjected to torture was always playing and the fact of torture evidently is not denied by the petitioner in his

evidence.

From the above facts, it transpires to this Court that although the respondent/wife left the house tangibly on her own yet the circumstances, as

appearing from the evidence, are such that the wife/respondent had to leave the house of the petitioner/husband under compelling reasons due to the

torture meted out to her although such fact was not disclosed in so many words in her petition. No attempt by the petitioner/husband to take her back

and also not providing maintenance during her separate stay for a long time is indicative of lack of persuasion on his part although effort to persuade

would have been the course usually adopted by any husband.

Considering such background facts, this Court is not inclined to interfere with the findings recorded by the learned Additional Sessions Judge, FTC,

Biswanath Chariali, in the revisional order so far entitlement of maintenance is concerned. However, after hearing both the parties, this Court is in

agreement that the maintenance allowance granted to the respondent/wife with effect from the date of filing of the petition before the learned Sub-

Divisional Judicial Magistrate (M), Biswanath Chariali, ought to have been with effect from the order dated 05-05-2009, passed by the learned

Additional Sessions Judge, FTC, Biswanath Chariali, in Criminal Revision No. 38(S-3) of 2007.

Accordingly, the maintenance allowance awarded to the respondent/wife shall be paid with effect from the date of the order, in the revision

petition by the learned Additional Sessions Judge, FTC, Biswanath Chariali.

With the above modification in respect of the effective date of payment of maintenance allowance, this revision petition is disposed of.

Send down the LCR along with a copy of this judgment and order.