Rajendra Kuchlyan vs Jhuma Kuchlyan

Madhumati Mitra, J

The present application under Section 482 read with Section 401 of the Code of Criminal Procedure has been filed by the petitioner/husband

challenging the order dated 19.02.2019 passed by the Learned Sessions Judge, Bankura in Criminal Revision No.35 of 2018, thereby setting aside the

order dated 12.09.2018 passed by the Learned Chief Judicial Magistrate, Bankura in Misc. Case No.53 of 2018 and directed the petitioner to pay a

sum of Rs.20,000/- per month as interim maintenance allowance from 20.04.2018 to the opposite party and also to pay the opposite party a sum of

Rs.10,000/- as litigation cost.

Present opposite party/wife filed an application under Section 125 of the Code of Criminal Procedure praying for an order of maintenance for self and

her daughter claiming herself to be the legally married wife of the present petitioner/husband. It was alleged by the opposite party/wife in her

application for maintenance that she had been compelled to take shelter at the residence of her father along with her minor daughter being failed to

bear the torture meted to her. It was alleged that the present petitioner/husband had failed and neglected to maintain them though he has sufficient

source of income from his business. Opposite party/wife prayed for interim maintenance to the tune of Rs.30,000/- per month and litigation cost of

Rs.10,000/-.

The prayer for interim maintenance was opposed by the present petitioner/husband as opposite party. In his written objection the husband admitted the

factum of his marriage with the present opposite party and birth of two daughters out of the said wedlock. It was alleged by the husband that the wife

had illicit relationship with one Mithu Das and said Mithu Das with the help of the opposite party/wife committed rape on the elder daughter of the

parties to the case. Bankura woman P.S.Case No.50 of 2017 was started on the basis of the said incident. Said Mithu Das was arrested and the

statement of the eldest daughter of the petitioner and opposite party was recorded by the Magistrate under Section 164 of the Code of Criminal

Procedure. Petitioner/husband has initiated a divorce proceeding against the wife on the ground of adultery. In his written objection, the

petitioner/husband claimed that the wife/opposite party had left the matrimonial home voluntarily. It was specifically stated by petitioner/husband that

the wife was not entitled to get any maintenance for her illicit relationship with the said Mithu Das.

Learned Magistrate vide his order dated 12.09.2018, was pleased to reject the said prayer for interim maintenance of the wife. The said prayer was

turned down by the Learned Magistrate after considering the statement of the elder daughter of the parties recorded under Section 164 of the Code of

Criminal Procedure in connection with special Case No.14 of 2017. It was observed by the Learned Magistrate that the younger daughter of the

parties resides with her father. Order of refusal of the prayer for interim maintenance was challenged before the Learned Sessions Judge, Bankura in

Criminal Revision No.35 of 2018. Learned Session Judge has allowed the revisional application setting aside the order of Learned Magistrate and

directed the husband to pay maintenance to the wife and to pay cost of litigation.

The order of the Learned Sessions Jude passed in revision allowing the prayer of wife for interim maintenance is under challenge.

The impugned order has been assailed by the Learned Counsel for the petitioner/husband on various scores. The main plunk of his submission is that

the Learned Judge has failed to consider that the wife is leading adulterous wife and she herself used her own daughter in immoral actively which was

clearly reflected in the statement of the elder daughter of the parties recorded under Section 164 of the Code of Criminal Procedure in connection

with special case under POCSO Act. He has further contended that the Learned Judge has committed an error while granting the order of interim

maintenance in favour of the wife and failed to consider the relevant provision as contained in Sub-Section 4 of Section 125 of the Code of Criminal

Procedure that a wife who is living in adultery is not entitled to get maintenance from her husband.

On the other hand, Learned Counsel for the opposite party/wife has submitted that from the impugned order it appears that the special case under

POCSO Act which was initiated against the wife/opposite party ended in acquittal of the accused and the divorce suit which has been started by the

husband against the wife on the ground of adultery is pending. According to his contention Learned Judge has passed the impugned order rightly and

question of setting aside the said order as prayed for by the petitioner does not arise as the issue of adultery has not been decided by a Court of law.

Learned Advocate for the petitioner/husband has laid emphasis on the statement of the elder daughter of the petitioner recorded under Section 164 of

the Code of Criminal Procedure in connection with POCSO case. From the submissions made by the Learned Counsel for the parties it is clear that

the said case under POCSO Act was ended in acquittal of the accused and the divorce suit started by the husband on the ground of adultery against

the wife has not yet been decided. As such, at this stage, it would not be reasonable and justified to draw any inference regarding the allegation of

adultery of the wife on the basis of the said statement under Section 164 of Cr.P.C. and averments of the petition for divorce. Moreover, admittedly

the present opposite party/wife is the legally married wife of the petitioner/husband. At the time of consideration of the prayer for interim maintenance

the Learned Magistrate considered the plea of alleged adultery as raised by the husband. In view of settled principle of law, at the time of deciding an

application for interim maintenance the Magistrate should not delve deep into the disputed question of facts. The plea as taken by the husband cannot

be decided without delving into the facts. Both the parties deserve opportunities to adduce evidence in support of their respective contentions at the

time of final hearing of the application under Section 125 of the Code of Criminal Procedure. If any conclusion is drawn at this stage, then the interest

of either party may be prejudiced.

Having regard to the facts and circumstances of the case, I do not find any reason to interfere with the impugned order regarding grant of interim

maintenance to the wife and the cost of litigation.

As a result the revisional application stands dismissed.

Urgent Photostat certified copy of this judgment, be supplied to the parties, if applied for, upon compliance with all formalities.