Santosh Halder vs Saswati Halder (Dutta) and Others

Shib Sadhan Sadhu, J.—1. The petitioner/husband has preferred this Revision Petition under Section 401 of the Code of Criminal Procedure, 1973 (hereinafter mentioned as Cr.P.C. for the sake of brevity) against the order dated 7th November, 2013 passed by the learned Principal Judge, Family Court, Calcutta in Misc. Case No. 55 of 2012 whereby and whereunder he allowed the application under Section 125 of the Cr.P.C. filed by the wife/opposite party No. 1 directing that the husband/petitioner shall pay Rs. 6000/- (Rupees Six Thousand only) per month towards maintenance to the wife/opposite party No. 1.

Briefly stated, the facts of the case are that the wife/opposite party No. 1 filed an application for maintenance under Section 125 of Cr.P.C. before the Family Court, Calcutta for grant of maintenance of Rs. 10,000/- (Rupees Ten Thousand only) per month. It was stated in the application that the opposite party No. 1 was married with the petitioner on 10.10.2010 and it was registered under the Special Marriage Act, 1954. Subsequently, the marriage was solemnised on 26.10.2010 according to Hindu rites and ceremonies. After solemnisation of the marriage, the opposite party No. 1 went to her matrimonial home and lived with the petitioner as husband and wife. The petitioner and his relations were dissatisfied with the amount of dowry and other articles given by the father of the opposite party No. 1 and they pressurised her to bring more money from her father. On her failure to fulfil such illegal demand, she was subjected to torture - both physical and mental. She endured all such tortures anticipating that good sense would prevail upon her husband and his inmates, but they did not amend themselves and they renewed torturing her. She was kept in a separate room and her husband used to give her Rs. 40/- only per day as her maintenance. She became pregnant, but due to torture, miscarriage of her pregnancy took place. Despite repeated attempts made by the parents of the opposite party No. 1, she could not lead conjugal life peacefully and ultimately she was compelled to leave her matrimonial home on 29.05.2012 by the petitioner and his inmates. She then lodged a complaint at Gorfa Police Station on the basis of which a case under Section 498A/34 I.P.C. was registered. It was also mentioned in the application that the petitioner is a businessman having grocery-cum-stationery shop and his monthly income is more than Rs. 25,000/- (Rupees Twenty Five Thousand only). Despite having sufficient means, the petitioner has been neglecting to maintain her and so it was prayed that the petitioner/husband be directed to pay maintenance @ Rs. 10,000/- (Rupees Ten Thousand only) per month.

The husband, that is the present petitioner, filed Written Objection, wherein he denied the allegations as alleged in the application. He contended that no dowry or articles were given as alleged except some gold ornaments which were kept by the wife/opposite party No. 1 in her father''s custody when she went to her father''s place during observation of "Dwiragaman" ceremony. She went to her father''s house on 04.02.2011 to attend her sister''s marriage ceremony and she returned only on 06.03.2011. She used to visit her father''s place often without giving any intimation to the husband/petitioner. It was further contended that on 25.04.2011, wife/opposite party No. 1 went to her father''s place on the plea of casting vote in Assembly Election of 2011 to be held on 27.04.2011, but she came back on 01.05.2011 and stayed only for a few days. Thereafter, she left her matrimonial home on 22.05.2011 on her own accord. The petitioner/husband contacted with her over telephone in the first week of June asking her to come back, but she refused on the ground that she was carrying. The petitioner/husband became glad on hearing the news, but after a few days he was informed by his wife/opposite party No. 1 that miscarriage took place. He was shocked and requested her to come back to lead conjugal life, but she declined. Lastly, she returned to her matrimonial home on 26.01.2012 but during her stay she refused to share bed with the petitioner and she finally left her matrimonial abode on her own accord on 28.05.2012 taking all her articles. Since then, she did not return despite repeated request made by the petitioner. She advised him to desert his mother and to hand over his share of grocery business to other partners i.e. his brother taking money and to sever the relation with his paternal relations and to live at her father''s house permanently and to look after their printing and book binding business. The petitioner/husband did not accept such proposal and for that she initiated a criminal case against them. It is the further contention of the husband/petitioner that the wife/opposite party No. 1 has joint family business with her father having monthly income of Rs. 50,000/- (Rupees Fifty Thousand only). On the contrary, he runs a grocery shop on partnership basis the income of which is about 25,000/- (Rupees Twenty Five Thousand only) per month. He also takes medicine for his ailments. He, therefore, prayed for dismissal of the application under Section 125 Cr.P.C. filed by the wife/opposite party No. 1.

In support of the case, the wife/opposite party No. 1 examined herself as her sole witness being witness No. 1 (P.W.1) and the husband/petitioner also examined himself as his sole witness as O.P.W.-1. No documentary evidence has been adduced by any of the parties.

Learned Family Court after considering submission of the learned counsel for the parties and assessing the evidence adduced by them, allowed the application under Section 125 Cr.P.C. and directed the husband/petitioner to pay a monthly maintenance of Rs. 6,000/- (Rupees Six Thousand only) per month to the wife/opposite party No. 1. Being aggrieved the husband/petitioner has preferred this Revision Petition.

Ms. Roy, learned counsel appearing on behalf of the husband/petitioner contended that the learned Family Court did not at all consider the fact that the husband/petitioner runs a grocery shop jointly with his mother and brother in partnership and the total income of such business is Rs. 25,000/- (Rupees Twenty Five Thousand only) per month and so the income of the husband/petitioner comes out to be only Rs. 8,000/- (Rupees Eight Thousand only) per month. Therefore, the quantum of maintenance granted by the learned Family Court is not commensurate with the income of the husband/petitioner and thus, it is bad in law and is liable to be set aside.

Mr. Mallick, learned counsel appearing on behalf of the wife/opposite party No. 1, on the other hand, submitted that the learned Family Court has arrived at the finding on the score of income of the husband taking into account the entire evidence and materials produced by the parties and passed the order directing the present petitioner to pay maintenance @ Rs. 6,000/- per month. He submitted further that the quantum of maintenance awarded by the learned Family Court is in the lower side and it should be enhanced keeping in view the income of the husband and also passage of time. He, thus, concluded by emphasising that the impugned order is absolutely valid and correct and warrants no interference.

I have heard the learned counsel appearing for the parties. I have perused all the materials available on record. I have also gone through the impugned judgement and order with meticulous care.

Having regard to the rival contention and submission advanced by the learned counsel appearing for the parties, I find that the factum of marriage between the parties and their living together as husband and wife are admitted. Further admitted position is that the wife/opposite party No. 1 has been residing in her father''s house since 28.05.2012 and she is not paid any maintenance by the petitioner/husband. However, the parties are at loggerheads on the score of desertion - while the wife/opposite party No. 1 asserts that she was subjected to ill-treatment and cruelty - both physical and mental in her matrimonial home and ultimately she was driven out in the morning of 29.05.2012, the husband/petitioner claims that she did not discharge her marital obligations properly, that she was fond of living in her father''s house than in her husband''s house and she finally deserted her matrimonial home voluntarily on 28.05.2012. For adjudication of such claim and counterclaim, evidence adduced by the parties assumes great significance. On meticulous analysis and evaluation of the evidence adduced by P.W.-1 and O.P.W.-1, the learned Family Court came to the finding that the evidence adduced by the wife/opposite party No. 1 is more reliable and believable than that adduced by the present petitioner/husband.

I find nothing to differ and I fully concur with such findings arrived at by the learned Family Court. In this connection, I would like to mention that the proceeding under Section 125 Cr.P.C. is summary in nature. In a proceeding under Section 125 Cr.P.C., it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. Be that as it may, the learned Family Court referred to the evidence of the wife/opposite party No. 1 at length and held that she has justifiable ground to stay away from the matrimonial house.

Coming to the contention raised by the learned counsel appearing for the petitioner/husband on the score of the income of the parties, I would like to say that wife cannot be expected to adduce negative evidence that she did not have any income and it is for the petitioner/husband to show that the wife had income of her own, but the petitioner/husband failed to prove the same. Further well settled position of law is that the amount of husband''s income would be within the special knowledge of the husband and when the issue before the Court is the amount of such income, the onus, under Section 106 of the Evidence Act would be on the husband to disclose the same and if he fails to do so without any good reasons, the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her (vide , AIR 1988 Cal. 98--Chitra Sengupta Vs. Dhruba Jyoti Sengupta).

The learned Family Court had in extenso referred to the economic condition of the petitioner/husband and came to the finding that the husband is a man of sufficient means and has capacity to pay maintenance to his wife. Although, it was contended by the learned counsel appearing for the petitioner/husband that the business run by the petitioner is a partnership business and the share of the petitioner is 30% only on profit and loss basis but no evidence was led to substantiate such contention. Even the petitioner did not produce any of the alleged partners of his business before the Court as his witness. On the contrary, it has been admitted that the petitioner/husband published a matrimonial advertisement in the "Anandabazar Patrika" on its 25th July, 2010 issue declaring himself as a shop owner having income of Rs. 25,000/- (Rupees Twenty Five Thousand only) per month and that he owns a flat. No whisper about any partnership business was made in such advertisement. O.P.W.-1 in cross-examination candidly admitted the fact of publication of such advertisement and further admitted that he had mentioned that his income was Rs. 25,000/- (Rupees Twenty Five Thousand only) per month. He disclosed further that the phone number given in the advertisement belongs to him. He admitted yet further that he is purchased owner of the flat No. 563, P. Majumdar Road, Kasba, Kolkata-700078 and that there is a covered car parking space in that flat. P.W.-1 stated in her evidence that beneath the said flat of her husband, there is a garage and her husband collects rent from the said garage. Having regard to the business-income and rental-income of the petitioner/husband, the learned Family Court has awarded maintenance of Rs. 6,000/- (Rupees Six Thousand only) per month to the wife/opposite party No. 1 which cannot be called unreasonable or excessive.

I do not find any infirmity, illegality or perversity in the impugned judgement and order passed by the learned Family Court. The reasons assigned by the learned Judge for allowing the application are absolutely just and reasonable and no interference in the same is called for.

The amount of maintenance of Rs. 6,000/- (Rupees Six Thousand only) cannot be said to be just and proper in the facts and circumstances of the present case as I find that although in his Written Objection as well as in his evidence, the petitioner/husband contended that he runs a grocery in partnership of which income is Rs. 25,000/- (Rupees Twenty Five Thousand only) per month but he has not taken any trouble to substantiate such plea by leading an iota of evidence. On the contrary, he admitted to have published the matrimonial advertisement disclosing that his income was Rs. 25,000/- (Rupees Twenty Five Thousand only) per month as on 25.07.2010, i.e. on the date of publication of the matrimonial advertisement in the "Anandabazar Patrika". That being so, it is needless to say that there has been sea change of circumstances which justifies enhancement of the amount awarded by the learned Family Court. Accordingly, I think that the petitioner/husband shall be directed to pay Rs. 10,000/- (Rupees Ten Thousand only) per month as maintenance allowance to the wife/opposite party No. 1 from this date.

In view of the above discussion, I do not find any merit in the Revision Petition and the same is accordingly dismissed.

Criminal Section is directed to deliver urgent photostat certified copy of this judgement to the parties, if applied for, as early as possible.