Category Archives: calcutta HC

#Cruelty under #Hindu #Marriage Act different from #IPC #498a. Different standards even IF events & parties are same – #CalcuttaHC

/////It is well known that the standard of proof in civil suit as well as in the criminal proceeding, is different from each other. Civil suit is tried on the basis of preponderance of probability. Criminal proceedings are tried on the basis of proof beyond reasonable doubt

….

Thus, it appears that the ‘cruelty’ under the Hindu Marriage Act has a different meaning altogether, than that of the concept of ‘cruelty’ as envisaged in the Indian Penal Code. It necessarily follows that even the act complained of, in the criminal proceeding may not constitute cruelty within the meaning of Section 498A of the Indian Penal Code, but, still such act may constitute a ground of divorce on the ground of cruelty where such acts are so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other. https://twitter.com/ATMwithDick/status/1021387677759832064 ////

 
IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction Appellate Side

Present:

The Hon’ble Justice Jyotirmay Bhattacharya

C.O. No.4462 of 2007

Asok Kumar Pal

-versus-

Smt. Sawan Pal

For the Petitioner : Mr. Sardar Amjad Ali, Ms. Kaberi Ghosh.
For the Opposite : Ms. Chama Mookherji, Parties. Mr. Surojit Roy Chowdhury, Ms. Chandrima Chatterjee.
Judgment On : 11 – 07 – 2008.

Two proceedings are continuing side by side. One of such proceedings which was initiated on the complaint of the wife/opposite party against her husband under Section 498A/406/120B of the Indian Penal Code, is now pending for consideration before the learned 1st Court of Judicial Magistrate at Sealdah. The other proceeding is a suit for divorce which was also filed by the wife/opposite party against her husband on the ground of cruelty under Section 13(I)(ia) of the Hindu Marriage Act. Both the aforesaid proceedings were thus, initiated at the instance of the wife/opposite party. First of such proceedings was the criminal proceeding which was filed by the wife, as aforesaid. The civil suit for divorce was filed subsequently. The allegations constituting ‘cruelty’, on which the criminal proceeding was initiated, are the allegations on which the Civil Suit was also founded. https://twitter.com/ATMwithDick/status/1021387677759832064

There is no disagreement between the parties on the issue that the similar set of facts are the foundation of both the criminal proceeding and the civil suit. Charge has already been framed in the criminal proceeding. Issues have also been framed in the civil suit.

Since the claim and counter-claim of the parties are identical in both the aforesaid proceedings it is not quite unnatural that some of the issues and/or charges in those proceedings will be identical.

Both the criminal proceeding and the civil suit have matured for hearing. The cross-examination of the wife/opposite party is now going on, in the criminal proceeding. In the civil suit the petitioner has already submitted his evidence in chief on affidavit. Cross-examination of the petitioner is yet to be commenced. At this stage the petitioner/husband filed an application under Section 151 of the Code of Civil Procedure in the civil suit inter alia praying for stay of further proceeding of the civil suit till the disposal of the aforesaid criminal proceeding on the ground that if both the proceedings are allowed to be proceeded with simultaneously then there will be embarrassment of trial not only for the parties, but also for the Court. It was alleged by the petitioner in the said application that if the civil suit is allowed to be proceeded with then he will be compelled to disclose his full defence, in the civil suit and such disclosure will affect his defence in the criminal proceeding.

Such application of the petitioner/husband was rejected by the learned Trial Judge primarily on the ground that since the petitioner has already filed written statement in the suit and the issues have already been framed, the petitioner cannot be affected, if the civil suit is allowed to be continued simultaneously with the criminal proceeding. Thus, the learned Trial Judge held that though similar set of facts are involved in both the criminal proceeding as well as in the civil suit but, still then, there is hardly any chance of embarrassment in the trial of both the proceedings simultaneously, as the defence had already been disclosed by the petitioner in the civil suit.

Challenging the propriety of the said order the petitioner/husband has filed the instant application under Article 227 of the Constitution of India before this Court. Mr. Sardar Amzad Ali, learned Senior Advocate appearing for the petitioner relied upon various decisions of the Hon’ble Supreme Court as well as of this Hon’ble Court to show that when the pleadings of the parties are identical in both the criminal proceeding as well as in the civil suit and when there is possibility of embarrassment of trial because of such identity of dispute in the said proceedings, it will be expedient to stay all further proceedings of the civil suit till the disposal of the criminal proceeding. Following are the decisions which were relied upon by Mr. Ali in support of his aforesaid submission:-

  1. In the case of M.S. Sheriff & Anr. -Vs- State of Madras & Ors. reported in AIR 1954 SC 397.
  2. In the case of Kusheshwar Deby -Vs- Bharat Cooking Coak Ltd. & Ors. reported in AIR 1988 SCC 2118.

  3. In the case of Dibakar Das -Vs- Registrar General, Appellate Side, High Court & Anr. reported in (2006)2 CHN 48.

  4. In the case of Captain M. Paul Anthony -Vs- Bharat Gold Mines Ltd. reported in AIR 1999 SC 1416.

  5. In the case of Union of India -Vs- Monoranjan Mondal @ M.R. Mondal reported in (2005)1 CHN 222.

  6. In the case of Senior Divisional Manager, National Insurance Co. Ltd.

& Anr. -Vs- Satima Cold Storage & Ors. reported in (1989)1 CHN 555.

Mrs. Chama Mookherji, learned Advocate appearing for the opposite party refuted such submission of Mr. Ali by submitting that there is no hard and fast rule which prescribes that in all cases where civil suit and criminal proceeding are founded on a common footing, further proceeding of the civil suit should be stayed till the disposal of the criminal case. Mrs. Mookherji submitted that since the scope of enquiry and the standard of proof in the criminal proceeding as well as in the civil suit are different from each other, civil suit cannot be stayed merely because of pendency of the criminal proceeding. Mrs. Mookherji further contended that in every criminal case, offence complained of, is an offence committed by the accused against the State and as such, the de-facto complainant cannot get any relief in such criminal case, even if, the accused is ultimately found to be guilty and is punished. But, in civil suit the plaintiff can surely get the relief if she succeeds in getting a decree in her favour. She further contended that both the civil suit and the criminal proceeding of such nature, demand speedy and expeditious disposal. As such, further proceeding of the civil suit cannot be stayed. In support of such submission, Mrs. Mookherji relied upon various decisions which are as follows :-

  1. In the case of Kamala Devi Agarwal -Vs- State of West Bengal & Ors. reported in AIR 2001 SC 3846.
  • In the case of Dipot Manager, A.P. State Road Transport Corporation – Vs- Hohd. Yousuf Miya & Ors. reported in (1997)2 SCC 699.

  • In the case of State of Bihar -Vs- Murad Ali Khan & Ors. reported in (1988)4 SCC 655.

  • In the case of Pratibha -Vs- Rameshwari Devi & Ors. reported in 2007(6) SC 554.

  • In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries & Ors. reported in (1996)2 Supreme 333.

  • Heard the learned Counsel of the parties. Considered the materials on record including the order impugned.

    On perusal of the decisions which were cited by Mr. Ali this Court finds that there is uniformity in all the said decisions to the effect that there is no hard and fast rule governing the field. It is only when there is any likelihood of embarrassment, further proceeding of the civil suit can be stayed till the disposal of the criminal proceeding. Whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment or not depends upon the facts and circumstances of each case. As such, the Court has to apply its mind for ascertaining as to whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment, in the present set of facts.

    The decisions which were cited by Mrs. Mookherji excepting the decision in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries (supra), are mostly irrelevant for the present purpose as those are the case where either the criminal proceeding was quashed by different High Courts because of pendency of the civil suit or the departmental enquiry in service matter was stayed because of the pendency of the criminal proceeding. In those set of facts the Hon’ble Supreme Court interfered with the decisions of different High Courts which were under challenge before the Hon’ble Supreme Court. In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. & Ors. (supra), the Hon’ble Supreme Court, however, held that stay of the civil suit cannot be granted when the defence has already been filed by the defendant in the civil suit. In fact, the principle which were laid down in the said decision, supports the order impugned as the learned Trial Judge rejected the petitioner’s prayer for stay on identical findings.

    Keeping in mind the principles which were laid down in the aforesaid decisions cited by the parties, let me now consider as to whether the further proceeding of the suit should remain stayed till the disposal of the criminal proceeding or not. It is well known that the standard of proof in civil suit as well as in the criminal proceeding, is different from each other. Civil suit is tried on the basis of preponderance of probability. Criminal proceedings are tried on the basis of proof beyond reasonable doubt. When the standard of proof and the scope of enquiry are different from each other, no Court will feel any embarrassment if both the criminal proceeding and the civil suit are proceeded with simultaneously. That apart, the decision of the Criminal Court is not binding upon Civil Court. As such, civil suit should not ordinarily be stayed for considering the fate of the criminal proceeding in the civil suit. But, still then, it is noticed by this Court that on some occasions, proceeding of the Civil Suit was stayed during the pendency of the criminal proceeding, to avoid embarrassment, on the part of the Court for trial of both the proceedings simultaneously. One of such instances is the case of M.S. Sheriff & Anr. -Vs- State of Madras & Ors. (supra), wherein the Hon’ble Supreme Court stayed the further proceeding of the civil suits till the disposal of the criminal proceeding. In the said decision I find that the criminal proceeding was initiated for wrongful confinement and in the civil suit, damages were claimed on account of such wrongful confinement. Thus, wrongful confinement was a common issue in both the criminal case as well as in the civil suit, and in fact, damage is the consequential relief on account of wrongful confinement. Under such circumstances, the Hon’ble Supreme Court stayed the further proceeding of the civil suit during the pendency of the criminal proceeding for avoiding embarrassment.

    Let me now consider as to how far the said principle is applicable in the facts of the instant case. No doubt cruelty is the ground for divorce. It is equally true that the cruelty is the foundation of the complaint before the criminal Court. Undisputedly the acts constituting cruelty, which were complained of in the criminal proceeding are the acts of cruelty on which the decree for divorce was sought for. Thus, apparently facts are similar in both the aforesaid cases but mere similarity of the facts in both the cases are not sufficient to stay the further proceeding of the civil suit in all cases. Scope and ambit of trial of both the proceedings are to be considered before passing an order of stay of further proceeding of the civil suit.

    Section 498A of the Indian Penal Code deals with cruelty by husband or relatives of husband. The said provision provides that whoever, being the husband or the relatives of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine. What amounts to cruelty for the purpose of the said provision has also been clarified in the explanation added to the said Section which provides that :-

    a) Any unlawful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health “whether mental or physical” of the woman or;

    b) Harassment of the woman where such harassment is with a view of coercing her or any person related to her meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Thus, cruelty has a limited meaning as defined in the said provision.

    But under the Hindu Marriage Act cruelty has not been defined. As such, any act or conduct which though may not amount to cruelty within the meaning of the definition of cruelty as given in Section 498A of the Indian Penal Code, may constitute cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act. https://twitter.com/ATMwithDick/status/1021387677759832064

    Since the cruelty has not been defined in the Hindu Marriage Act, it is difficult to define precisely as to what exactly cruelty means under Section 13(1)(ia) of the Hindu Marriage Act. Cruelty under Section 13(1)(ia) of the Hindu Marriage Act may extend to behaviour which may cause pain and injury to the mind as well as to render the continuance in matrimonial home an ordeal where it becomes impossible for them to live together with mental agony, torture or distress. The question as to whether an act complained of was cruel or not is to be determined from whole of the facts and matrimonial relations between the spouses regard being given to their culture, temperament, status in life and state of health of the parties interaction between them in their daily life. Cruelty for the purpose of matrimonial relationship means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily sufferings or of being injured. Cruelty may be physical, mental or legal. In matrimonial laws it may be of infinite variety. It may be by words, gestures or by mere silence, violence or non-violence. To constitute cruelty, the conduct complained of, should be so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be more serious than ordinary wear and tear of the married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in matrimonial laws or not. Thus, cruelty postulates a treatment of the petitioner with such cruelty as to reasonable apprehension in the petitioner’s mind that it will be harmful or injurious for the petitioner to live with the other spouse. Cruelty may be physical or mental. Mental cruelty may consist of verbal abuse and insult by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

    Thus, it appears that the ‘cruelty’ under the Hindu Marriage Act has a different meaning altogether, than that of the concept of ‘cruelty’ as envisaged in the Indian Penal Code. It necessarily follows that even the act complained of, in the criminal proceeding may not constitute cruelty within the meaning of Section 498A of the Indian Penal Code, but, still such act may constitute a ground of divorce on the ground of cruelty where such acts are so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other.

    Since the concept of cruelty under the Indian Penal Code is not exactly identical with the concept of cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act, this Court cannot hold that there will be any embarrassment on the part of the Civil Court in continuing with the trial of the suit during the pendency of the criminal proceeding.

    That apart, the petitioner has already disclosed his defence in the civil suit. Since the defence has already been disclosed by the petitioner in the civil suit, it cannot be reasonably expected that a different stand will be taken by him in the criminal proceeding against identical acquisition. Thus, when the defence has already been filed by the petitioner in the civil suit and the scope of enquiry in the civil suit has already been determined by framing of issue therein, this Court relying upon the decision of the Hon’ble Supreme Court in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. & Ors. (supra) as well as on the decision of the Hon’ble Court in the case of Senior Divisional Manager, National Insurance Co. Ltd. & Anr. -Vs- Satima Cold Storage & Ors. (supra), holds that further proceeding of the civil suit cannot be stayed on account of pendency of the Criminal proceeding.

    In both the criminal proceeding as well as in the Civil Suit, the examination of the wife has commenced. Evidence-in-chief of the wife has already been concluded in both the criminal proceeding as well as in the Civil Suit. Cross- examination of the wife has commenced in the criminal proceeding and a date has been fixed in the Civil Suit for cross-examination of the wife. This Court holds that if the Civil Suit is stayed at such advanced stage of trial, then the opposite party will suffer loss and injury.

    In my view, under such circumstances, the Civil Court will not find any embarrassment, if both the criminal proceedings and the civil suit are tried simultaneously as the scope of enquiry and the standard of proof in both the proceedings are not identical. That apart, both the criminal proceeding as well as the suit for divorce demand speedy disposal. Stay of any one of such suit and/or proceeding will surely have a wrong impact not only on the society but also on the parties in their matrimonial life.

    Under such circumstances, this Court does not find any justification to interfere with the order impugned.

    Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.

    ( Jyotirmay Bhattacharya, J. )

    I signed up 4 marriage & NEVER told my parents. But he’s earning less, so ….. (Annulment / Cal HC)

    It’s tough to find out what really happened in this case
    However the one view I have is as follows
    * I (innocent abla nari) went to his house without telling my parents and also signed up for marriage before the marriage registrar….
    * Later I filed an affidavit in 2013 where I did NOT raise the issue of financial or educational fraud !!
    * However now I find that his salary is less than what he claimed, so I want annulment ….. !!
    Of course readers are free to interpret this case as they wish !!

    ==================================
     
    Calcutta High Court (Appellete Side)
     
    Sri Subhendu Paul vs Smt. Satarupa Das Majumdar on 21 August, 2015
     
    Author: Rajiv Sharma
     
    IN THE HIGH COURT AT CALCUTTA
    CIVIL APPELLATE JURISDICTION
    APPELLATE SIDE
     
    F.A.T. 325 of 2013
     
    Sri Subhendu Paul
    -Vs.–
    Smt. Satarupa Das Majumdar
     
    Coram : The Hon’ble Justice Rajiv Sharma
    The Hon’ble Justice Shivakant Prasad
     
    For the Appellant : Mr. Kallol Basu
    Mr. Bratin Kumar Dey
     
    For the Respondent : Mr. Gopal Chandra Ghosh
    Ms. Jayeta Kaunda
     
    Heard On : 14.7.2015 & 20.7.2015
    Judgment On : 21.8.2015
     
    SHIVAKANT PRASAD, J.
     
    Challenge in this appeal is against the judgment and decree dated 11.5.2013 passed by the learned Additional District Judge, 4th Court, Alipore, South 24-Parganas in Matrimonial Suit No. 1290 of 2009.
     
    Brief facts leading to the instant appeal is that the present respondent as the petitioner filed an application under Section 25 of Special Marriage Act, 1954 with a prayer for annulment of the marriage by a Decree of nullity.
     
    The petition8er contended that she is a a Computer Engineer employed as Student Councillor at Kriti Institute of Training and Development, Stephen House, BBD Bag, Kolkata from 12.7.2007 to 11.5.2008 where she became acquainted with the present appellant who was employed as part time Accounts Faculty. She had contact with him over telephone or mobile. The appellant had disclosed his educational qualification as having passed Inter C.A. and studying part time MBA from Joka who proposed to the present respondent to marry her and he gave out that he worked as Commercial Executive of Future Group at Food Bazar, Rajarhat. Her parents and sister did not agree to the proposal of the marriage.
     
    On 10.12.2008 the present appellant took her to his house at Seoraphuli though she was unwilling to go there. She was surprised and astonished finding Marriage Registrar there. The appellant along with his mother and brother created pressure to put her signature and under compelling circumstances she put her signatures on some papers as the Marriage Registrar wanted her to sign. She came back to her house and was upset. Out of shame and fear she could not disclose the incident to her parents. According to the respondent herein she did not sign the papers at her own free will and volition and by the deceitful means present appellant made undue influence and misrepresentation to go to his house. Thus, he exercised fraud and coercion. He disclosed and claimed that his monthly salary was Rs. 17,000/- which was false rather she ascertained his salary to be only Rs. 9,500/- to Rs. 10,000/-. Accordingly, the present respondent as the petitioner of the Matrimonial Suit prayed for decree declaring the marriage as null and void.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick .
     
    The present appellant as the respondent of the Mat. Suit contested the application by filing Written Statement and denied all material allegations made in the petition and contended, inter alia, that they had love affairs since November, 2007 and the marriage was registered under Special Marriage Act on 10.12.2008. The petitioner/respondent herein had disclosed that her parents could not accept such matrimonial relation between them. It is the contention of the present appellant that he tried to contact the present respondent in different manners even through Email as her parents had not allowed her to join service on and from 2009 and her mobiles were disconnected and her movement out of the house was restrained. Accordingly, the m appellant as respondent submitted that she was not entitled to get a decree of nullity of marriage.
     
    The learned Trial Court on the basis of the above pleadings framed as many as five issues including the issues as to whether the marriage was solemnized by coercion and fraud and whether the marriage was consummated.
     
    The learned Judge after taking evidence of both the parties was pleased to decree the suit on contest without costs by granting a decree for annulment for marriage by the Judgment dated 11.5.2013 which is the impugned Judgment under challenge before this Court on the grounds inter alia, that the learned Judge failed to apply the tests embodied in Section 25 of the Hindu Marriage Act, 1955 and that learned Judge ought to have considered that the marriage was registered by the Marriage Registrar according to law after due service of notice, which was corroborated by the testimony of D.W.-3 being the Marriage Officer.
     
    It is urged on behalf of the appellant that the learned Judge should have considered the affidavit filed by the respondent on 18th January, 2013, wherein the ground of fraud in respect of financial and educational status of the appellant herein in obtaining consent was not pressed and as such there was no fraud played by the appellant.
     
    It is contended that the certificate under Section 13 of the Special Marriage Act, 1954 itself is solemnization of marriage, which does not require further performance of ceremony and so the learned Judge ought to have considered that performance of essential ceremonies was not required as required in case of marriage under Hindu Marriage Act in view of Section 15(1) of the Special Marriage Act, 1954.
     
    We are unable to agree with the contention of the appellant that the evidence of P.W.-1 suggests a wilful refusal to consummate the marriage is attributable to the plaintiff/respondent as this fact cannot be lost sight of that the present respondent has expressed her unwillingness to be in the company of the present appellant even for a moment and has emphatically submitted in the course of reconciliation before us that by practising misrepresentation the appellant took her to his place where she was compelled to put signatures on certain documents.
     
    The learned Judge observed that the alleged marriage was solemnized on 10.12.2008 and the suit was filed on 30.6.2009 and the respondent alleged that the marriage was not consummated. The learned counsel for the respondent submitted that she has undergone virginity test and she was placed before the Medical Board and the medical report Exbt.-5 reflects that she was not showing any sign of defloration i.e. she is virgin and not experienced sexual intercourse in ordinary course of nature.
     
    In our view fraud denotes that if the consent to the marriage contract was obtained by fraud, then there is ground for an annulment of marriage and that fraud would be construed simply for not telling the truth in order to induce the other party to enter into the marriage contract. It is true that whether the failure to tell the truth will be a ground for annulment depends of the facts of the case. Now, we find from the evidence on record that the learned Judge has categorically observed on evidence of P.W.-1 taking into consideration the Exbt.-2 that the defendant claimed himself as Inter C.A. passed and B. Com. (H) from I.I.T., Kanpur and also claimed that his salary was Rs. 17,000/- per month and 50 + lakhs per annum, but the present appellant neither submitted any such documents to prove his qualification nor pay slip to prove his salary at the rate of Rs. 17,000/- per month.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick .
     
    The learned Judge has relied on the decision reported in AIR 2001 Patna, Page-110 which is a case under Hindu Marriage Act (25 of 1955) under Section 12(1)(c) for declaration of marriage null and void wherein the ground taken was that consent of wife was obtained by fraud. It was disclosed to wife that the groom was Computer Engineer. She ignored the fact that he was lesser in age, than that of her, since he was Computer Engineer she had consented to the marriage. After marriage it came to her knowledge that her husband had failed thrice in I. Sc. and was not Computer Engineer. It was also observed that knowledge of bride’s father about said fact would be immaterial.
     
    In the above set of facts the Hon’ble Court held the marriage liable to be declared as null and void. We are of the opinion that ratio of decision is well nigh within the facts and circumstances of the instant case and analogy has been rightly drawn by the learned Trial Court in coming to the finding that there has been a fraud perpetrated by the appellant upon the respondent in the matter of taking her to his house and to obtain signature document purported to be marriage certificate under Special Marriage Act.
     
    It has been observed in a case reported in AIR 1993 M.P. 54 that mere certificate of registration under Section 15 of a Special Marriage Act would not validate the marriage in view of Section 24 (2) of the Act.
     
    In the context above, we are of the considered opinion and hold that there is no ground to interfere into the impugned Judgment as there is no illegality or infirmity in the Judgment impugned.
     
    Accordingly, the appeal is hereby dismissed, however, without any order as to costs.
     
    Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
     
    RAJIV SHARMA, J.
     
    I agree.
     
    RAJIV SHARMA, J.
     
    SHIVAKANT PRASAD, J.
    ============================*disclaimer==================================
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    Either lump sum OR monthly maintenance u/s 20 DV act. NOT both ! Cal HC Gem !

    a mother files DV case on three of her children. The learned MM allows her petition and orders Rs 2000 p.m. from each of her sons AND a fixed deposit of rs 50,000/- per head. Sons appeal to sessions court who sets aside the lump sum payment and grants enhanced monthly maintenance of Rs 2500 per month per son. Mother goes on appeal to HC. HC appreciates the facts and points out that sec 20 of DV act allows only for lump sum OR monthly maintenance AND NOT both !! So HC affirms sessions court judgement and confirms that either Either lump sum OR monthly maintenance can only be granted under Sec 20 DV act !!


    IN THE HIGH COURT AT CALCUTTA

    CRIMINAL REVISIONAL JURISDICTION

    Appellate Side

    Present : THE HON’BLE JUSTICE SANKAR ACHARYYA

    C.R.R. No. 1012 of 2015

    In the matter of :

    Shahira Khatoon Mullick
         Vs.
    Rabiul Haque Mullick & Ors.

    For the petitioner    : Mr. Suman De; advocate.

    For the private respondents  : Mr. S.K. Humayun Rezzak; advocate.

    Heard on              : 06.01.2016, 20.01.2016, 29.01.2016,

    08.02.2016.

    Judgment on           : 29.03.2016

    SANKAR ACHARYYA, J.

    This revisional application under Sections 397/401/482 of the Code of Criminal Procedure has been filed by petitioner Shahira Khatoon Mullick against her three sons as opposite party nos. 1, 2 and 3 and the State of West Bengal as proforma respondent no. 4.

    Petitioner has challenged the judgment dated 13.02.2015 passed by learned Additional Sessions Judge, Arambagh, Hooghly in Criminal Revision No. 01 of 2014 arising out of order dated 31.03.2014 passed by learned Judicial Magistrate, Additional Court, Arambagh in M.C. 83 of 2013.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    Petitioner filed M.C. 83 of 2013 under the provisions of the Protection of Women from Domestic Violence Act, 2005 (in short P.W.D.V. Act) against her three sons who are opposite party nos. 1, 2 and 3 herein. In the order dated 31.03.2014 learned Judicial Magistrate passed residence order and order granting monetary reliefs in favour of the petitioner. In that order direction was given to the opposite party nos. 1, 2 and 3 to provide Rs.2000/- each as monthly maintenance to the petitioner and to contribute Rs.50,000/- each in the fixed deposit to be opened in the name of the petitioner in some nationalised bank which is to be dedicated towards her unforeseen medical expenses and needs and treatments expenditure. Said order was challenged by opposite party nos. 1, 2 and 3 in Criminal Revision No. 01 of 2014. In that case learned Additional Sessions Judge, Arambagh allowed the revisional application in part and modified the order of learned Judicial Magistrate setting aside the order for contributing Rs.50,000/- each by the three opposite party nos. 1, 2 and 3 in favour of petitioner as fixed deposits and enhancing the sum of monthly maintenance allowance of the petitioner from Rs.2000/- to Rs.2500/- each payable by said three opposite parties. In this revisional application petitioner has challenged the legality, propriety and correctness of the impugned judgment passed by learned Additional Sessions Judge.

    I have gone through the certified copy of the impugned judgment, revisional application and its annexure filed by the petitioner. Undisputedly, the petitioner is mother of the opposite party nos. 1, 2 and 3 and the petitioner is an octogenarian lady having other sons and daughters also.

    In this revisional application, inter alia, it has been contended that learned Additional Sessions Judge erred in law setting aside the direction of learned Judicial Magistrate regarding the contribution of Rs.50,000/- each of the three opposite parties towards medical expenses of the petitioner. It has been claimed by the petitioner that Section 20 (1) (b) of the P.W.D.V. Act deals with medical expenses and according to Section 20 (3), maintenance may be paid in lump or monthly basis. Further claim of the petitioner is that in terms of Section 20 (1) (b) of the said Act, the Magistrate, which disposing of an application under Section 12 (1) of the said Act, may direct the respondent to pay medical expenses in addition to other monetary relief. In the same tune, Mr. Suman De, learned counsel advanced his arguments that learned Additional Sessions Judge failed to appreciate that the power of learned Magistrate under Section 20 (3) of the said Act is in addition to the provisions of Section 20 (1) of the said Act and not disjunctive in nature. Petitioner also contended that in view of the provision of appeal under Section 29 of the Act learned Additional Sessions Judge ought to have dismissed the revisional application against the order of learned Judicial Magistrate.

    Mr. Rezzak, learned counsel for the opposite party nos. 1, 2 and 3 argued that learned Magistrate erred in passing order for payment of monthly maintenance and lump sum amount both although Section 20 (3) of the P.W.D.V. Act provides for payment of either monthly maintenance or a lump sum amount. He advanced arguments that learned Additional Sessions Judge rightly modified the order of learned Magistrate by proper interpretation of the statutory provisions which requires no interference by this Court.

    Regarding maintainability of the revisional application in the Court of learned Additional Sessions Judge, I like to mention that said learned Court is competent to hear an appeal under Section 29 of the P.W.D.V. Act. Statutory bar under Section 397 (2) of the Code of Criminal Procedure is not attracted against the revisional application as per determining question in that Court. In the impugned judgment learned Additional Sessions Judge did not take up for consideration of any matter beyond the scope of determination in an appeal under Section 29 of the P.W.D.V. Act. Yet, it was proper for the opposite party nos.1and 3 to file their petition of appeal under Section 29, P.W.D.V. Act instead of their revisional application before the Court below. It does not appear from the materials on record that present petitioner raised the question of maintainability of revisional application before learned Additional Sessions Judge. Having considered the above aspects I am of the view that excepting the form of application instead of petition of appeal under Section 29 of the P.W.D.V. Act filed by the petitioners in the Court below there was no major defect in proceeding the revisional application before learned Additional Sessions Judge. In my considered opinion, when the substance of the revisional application was entertainable in law and was considered judicially by a competent Court, the defect in form of application which was presented before it does not vitiate the entire proceeding. As such, the legality, propriety and correctness of the impugned judgment should be considered on merits by this Court in the present case.

    In respect of observation made in the impugned judgment about enhancement of monthly maintenance of the petitioner from Rs.2000/- to Rs.2500/- payable by each of the three sons of the petitioner there is no challenge from either party before this Court. The only point in issue on merit is whether learned Additional Sessions Judge has fallen in error making observation that the provision under Section 20 (3) of the P.W.D.V. Act empowers the Magistrate to pass an order for an appropriate lump sum payment or monthly payment of maintenance, as the nature and circumstances of the case may require and that the learned Court below has passed an order directing the petitioners (opposite party nos. 1 and 3 herein) to pay both monthly maintenance and also to pay Rs.50,000/- each which is beyond the scope of the provisions of Section 20 (3) of the P.W.D.V. Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    |  Section 20 of the P.W.D.V. Act reads as:-
      |  
      |  “20. Monetary reliefs.-
      |  
      |  1. While disposing of an application under Sub-Section (1)
      |  of Section 12, the Magistrate may direct the respondent to
      |  pay monetary relief to meet the expenses incurred and
      |  losses suffered by the aggrieved person and any child of
      |  the aggrieved person and as a result of the domestic
      |  violence and such relief may include, but is not limited
      |  to,-
      |  
      |  a). the loss of earnings;
      |  b). the medical expenses;
      |  c). the loss caused due to the destruction, damage or
      |  removal of any property from the control of the aggrieved
      |  person; and
      |  d). the maintenance for the aggrieved person as well as
      |  her children, if any, including an order under or in
      |  addition to an order of maintenance under Section 125 of
      |  the Code of Criminal Procedure, 1973 (2 of 1974) or any
      |  other law for the time being in force.
      |  
      |  2. The monetary relief granted under this Section shall be
      |  adequate, fair and reasonable and consistent with the
      |  standard of living to which the aggrieved person is
      |  accustomed.
      |  
      |  3. The Magistrate shall have the power to order an
      |  appropriate lump sum payment or monthly payments of
      |  maintenance, as the nature and circumstances of the case
      |  may require.
      |  
      |  4. The Magistrate shall have the power to order for
      |  monetary relief made under Sub-Section (1) to the parties
      |  to the application and to the in-charge of the police
      |  station within the local limits of whose jurisdiction the
      |  respondent resides.
      |  
      |  5. The respondent shall pay monetary relief granted to the
      |  aggrieved person within the period specified in the order
      |  under Sub- Section (1).
      |  
      |  6. Upon the failure on the part of the respondent to make
      |  payment in terms of the order under Sub-Section (1), the
      |  Magistrate may direct the employer or a debtor of the
      |  respondent, to directly pay to the aggrieved person or to
      |  deposit with the Court a portion of the wages or salaries
      |  or debt due to or accrued to the credit of the respondent,
      |  which amount may be adjusted towards the monetary relief
      |  payable by the respondent”.

    In the instant case applicability of the P.W.D.V. Act is not in question. In Sub-Section 1 of Section 20 of that Act Clauses (a), (b), (c) and (d) illustrations have been mentioned for taking into consideration of the monetary relief in composite. In the impugned judgment learned Additional Sessions Judge considered the adequacy, fairness, reasoning and consistency with the standard of living of the petitioner herein for determining the monthly maintenance of the petitioner and for exempting the opposite party nos. 1 and 3 from any liability for payment of lump sum amount in connection with the order of learned Judicial Magistrate. In this case the only determining factor centres around the question as to whether the word ‘or’ mentioned in Sub-Section (3) of Section 20 of the P.W.D.V. Act is conjunctive or disjunctive. Learned counsel for the petitioner tried to impress upon this Court that the said word has been used in the statute to denote conjunctive but learned counsel for the opposite party nos. 1 and 3 argued that the said word is disjunctive. In the impugned judgment said word has been interpreted as disjunctive. Plain reading of the Sub-Section (3) of Section 20 of the P.W.D.V. Act empowers the Magistrate to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. In my opinion, according to the said provisions the Magistrate shall consider the requirement of the aggrieved person according to the nature and circumstances of the case and pass order for payment of monetary relief to the aggrieved person by respondent either in the form of appropriate lump sum amount or in the form of monthly payment of maintenance but not both. As such, said word “or” has been used by the legislature in the statute to denote it as disjunctive. Therefore, I find that learned Additional Sessions Judge has rightly interpreted that word as disjunctive in the impugned judgment. Learned Additional Sessions Judge, maintaining propriety observed correctly that learned Magistrate has ordered both an appropriate lump sum and monthly payment of maintenance which is beyond the scope of the provision of Section 20 (3) of the P.W.D.V. Act.

    In summing up my discussions made above I find and hold that the impugned judgment does not suffer from material infirmity on merit and it needs no interference in this revisional process. As a result, this revisional application is liable to be dismissed.

    Accordingly, this revisional application is dismissed on contest but without any order as to costs. A copy of this judgment be sent to the learned Additional Sessions Judge, Arambagh for drawing his attention to the provisions of Section 29 of the P.W.D.V. Act and for future guidance.

    Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing all requisite formalities.

    (SANKAR ACHARYYA, J.,)

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


    2x maintenance will NOT be justice, equity & good conscience. S 24 & S 125 amounts to be adjusted. Cal HC

    “…If, on the other hand, the husband petitioner’s plea of adjustment be negatived only on the ground that the order under Section 24 of the Hindu Marriage Act is a temporary order ….. it would virtually mean saddling the husband-petitioner with a liability to comply with both the orders and make the double payment of maintenance allowance, irrespective of the question other actual requirements of her maintenance. I am afraid, such a course would not be in consonance with the fundamental concept of justice, equity and good conscience.

    “…The mere fact that the order under Section 24 is temporary cannot thus constitute a good ground for making claim for adjustment inadmissible if it is otherwise admissible for the purpose. Adjustment cannot, however, be allowed as a matter of course. Whether such a plea would be admissible would depend upon facts and circumstances of each particular case…..”


    Calcutta High Court

    Sailendra Nath Ghosh vs State Of West Bengal And Anr. on 14 August, 1997

    Equivalent citations: 1998 (1) ALT Cri 17, I (1998) DMC 487

    Author: D B Dutta
    Bench: D B Dutta

    JUDGMENT Dibyendu Bhusan Dutta, J.

    1. The instant application under Section 482 of the Criminal Procedure Code is directed against the order dated 30.11.96 passed by the learned Judicial Magistrate, Seventh Court, Uluberia in Misc. Case No. 42 of 1995.
    2. The said case arose out of an application filed by the opposite party No. 1, Anita Ghosh under Section 125, Cr.P.C. The petitioner is her husband. Their marriage was solemnised according to Hindu rites and customs on 18.2.92. After the marriage, they lived together in the matrimonial home for some time. The opposite party No. 2 being infertile was undergoing medical treatment. There was no issue born out of their marriage. The opposite party No. 2 abandoned her matrimonial home on 30.10.94. The petitioner filed a matrimonial suit for divorce against the opposite party No. 2, being Mat. Suit No. 321 of 1994 in Second Court of Additional District Judge, Hooghly. The opposite party No. 2 lodged a complaint on 25.1.95 in Chandernagore Court alleging matrimonial cruelty against the petitioner. The opposite party No. 2 filed an application under Section 125 of the Criminal Procedure Code praying for maintenance allowance against the petitioner in the Court of Sub-Divisional Judicial Magistrate, Uluberia. Both the matrimonial suit and the complaint case are pending. In the matrimonial suit, the opposite party No. 2 had obtained an order being order No. 17 dated 8.7.96 directing the petitioner to pay alimony pendente lite at the rate of Rs. 700/- per month as well as litigation cost of Rs. 1500/- to the opposite party No. 2 and the petitioner has been paying the alimony pendente lite in terms of that order. During the trial of that case under Section 125, Cr.P.C., the petitioner gave evidence in support of the payment of alimony at the rate of Rs. 700/- per month to the opposite party No. 2. But the learned Magistrate by his impugned judgment and order disposed of the case under Section 125, Cr.P.C. awarding maintenance allowance at the rate of Rs. 800/- in favour of the opposite party No. 2 without, however, considering the fact that the opposite party No. 2 was already receiving a sum of Rs. 700/- towards alimony pendente lite by virtue of the order passed in the matrimonial suit, as a result of which, the opposite party No. 2 is getting maintenance allowance from the petitioner twice a month.

    3. Mr. A. Goswami, the learned Counsel appearing for the petitioner contended that the learned Magistrate ought to have made provision in the impugned order for adjustment of Rs. 700 /-, the amount which the opposite party No. 2 is getting by way of maintenance pendente lite in terms of order dated 8.7.96 passed in the matrimonial suit against the amount of Rs. 800/- which he awarded in her favour towards her maintenance allowance. If this adjustment is not allowed, the petitioner will be unjustly saddled with a liability to make payment of maintenance allowance to the opposite party No. 2 twice a month. Accordingly, Mr. Goswami wants this Court to modify the impugned order by making provision for adjustment of the maintenance pendente lite.

    4. Mr. Goswami placed his reliance on two Single Bench decisions of our High Court. One is reported in 96 CWN 861 in the case of Gosai Ch. Das v. Beauty Das and State of W.B., and the other is a subsequent unreported decision dated 16.6.96 in Criminal Revision No. 2504 of 1995 in the case of Manoj Kr. Chowdhury v. Jharna Chowdhury.

    5. Mr. Amit Talukdar, appearing for the opposite party No. 2, sought to resist the claim for adjustment. He argued that the two proceedings, namely the proceeding under Section 24 of the Hindu Marriage Act and the proceeding under Section 125, Cr.P.C. are two different proceedings. The order granting maintenance pendente lite in the matrimonial suit is not a final determination so as to be entitled to any serious weight in the proceeding under Section 125, Cr.P.C. The mere fact that the opposite party No. 2 is receiving maintenance pendente lite from the Matrimonial Court cannot disentitle her to the order of maintenance allowance from the Magisterial Court under Section 125, Cr.P.C. Mr. Talukdar also submits that the two decisions cited on behalf of the petitioner must be construed as per inquirium inasmuch as the Supreme Court decision in the case of Ramesh Chander v. Veena Kaushal, reported in 1979 Cr.L.J. 3 corresponding to has not been considered or referred to in the said two decisions and as such, the said two decisions will be of no avail to the petitioner in claiming adjustment. Mr. Talukdar relies on the aforesaid Supreme Court decision as well as the decision of Andhra Pradesh High Court reported in 1996 Cr.L.J. 2284, T. Rajender Singh v. Maya Devi.

    6. In the Supreme Court case of Ramesh Chander (supra), the husband sought divorce through the Civil Court and the wife claimed maintenance through the Criminal Court. As an interim measure, the District Court awarded maintenance and the High Court fixed the rate at Rs. 400/- per month. Meanwhile, the Magistrate, on the evidence before him, ordered ex-parte, monthly maintenance at the rate of Rs. 1,000/- for the wife and her two children together. Two points were urged before the Supreme Court on behalf of the husband. First, the Civil Court’s determination of the quantum is entitled to serious weight and the Criminal Court in its summary decision fell into an error in ignoring the former. The second point that was urged was that the awardable maximum for the wife and children as a whole under Section 125 of the Code was Rs. 500/- having regard to the text of the Section.

    7. The Supreme Court virtually answered the first point only at paragraphs 6 and ^ thus: “Broadly stated and as an abstract proposition, it is valid to assert that a final determination of a civil right by a Civil Court must prevail against a like decision by a Criminal Court. But here two factors make the principle inapplicable. Firstly, the direction by the Civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication. Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a higher maintenance. We cannot, therefore, fault the Magistrate for giving Rs. 100/- on this score”.

    8. The Supreme Court appears to have dealt with the second point in die remaining paragraphs of the reported judgment. While dealing with the question of awardable maximum under Section 125 and interpreting the meaning of expression “in the whole” appearing in that Section, the Supreme Court made the following observations : “This provision of Section 125, Cr.P.C. is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. It also observed that the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it had to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts”.

    9. In our case, we are not concerned with any such interpretation. No question had really arisen in the Supreme Court case as to whether the husband was entitled to any adjustment of the amount of maintenance allowance life awarded by the Matrimonial Court against the maintenance allowance awarded by the Criminal Court under Section 125, Cr.P.C. The Supreme Court enunciated the abstract principle that a final determination of a civil right by a Civil Court must prevail against a like decision by the Criminal Court. But the Supreme Court made that principle inapplicable to that case for two reasons. One is that the direction by the Matrimonial Court was only an order pendente lite under Section 24 of the Hindu Marriage Act to pay not only maintenance but also the expenses of the proceeding and was not a final determination under me Hindu Adoptions and Maintenance Act. The second reason that weighed with the Apex Court in making the principle inapplicable was that the amount awarded by the Matrimonial Court did not include the claim for maintenance of the children . In our case, the order that was passed under Section 24 of the Hindu Marriage Act directed the payment of Rs. 700/ – exclusively towards maintenance allowance which did not include any expense of the proceeding since the said order directed the payment of a separate amount towards the expenses of the proceeding. Moreover, the sum of Rs. 700/- awarded by way of maintenance was meant for maintenance of the Opposite party- wife alone and not of any other children since it is admitted that there was no issue born out of the marriage between the petitioner and the opposite party No. 2. It is with reference to the facts of the case of Ramesh Chandra (supra), that the Supreme Court did not fault the Magistrate for giving lis. 1,000/- towards monthly maintenance for the wife and two children together holding inter alia that the order under Section 24 of the Hindu Marriage Act did not bar the jurisdiction of the Magistrate to award a higher maintenance, put it must be pointed put here that the Apex Court while making the observation at paragraph 7 did not categorically hold that the order under Section 24 of the Hindu Marriage Act was totally irrelevant vis-a-vis the order under Section 125, Cr.P.C. It is significant to note here that the Apex Court used the expressions “barring marginal relevance for the Magistrate” at para graphs 7 of the reported judgment. It suggests that the Apex Court did consider the order under Section 24 of the Hindu Marriage Act to be of some relevance for the Magistrate, however, marginal it might be, while he exercises his jurisdiction to award maintenance under Section 125, Cr.P.C.

    10. In our case, the husband petitioner has not at all challenged the jurisdiction of the Magistrate in awarding a higher maintenance of Rs. 800/- as against the lower amount of Rs. 700/- awarded pendente lite under Section 24 of the Hindu Marriage Act. In Ramesh Chancier’s case (supra), no question of any adjustment of maintenance pendente Ute under Section 24 of the Hindu Marriage Act against the maintenance awarded under Section 125 of Cr.P.C. was specially raised or fell for consideration by the Apex Court nor did the Apex Court hold in that decision that the order under Section 24 was not relevant for claiming adjustment against the maintenance to be awarded under Section 125. In my view, the decision in Ramesh Chander’s case (supra) is not an authority for the proposition that the plea of adjustment is not at all entertainable by the Magistrate while he awards maintenance under Section 125, Cr.P.C. That being so, the two decisions cited by Mr. Goswami cannot be categorised as per inquirium merely because of the fact that the Supreme Court decision in case of Ramesh Chander (supra) was not considered therein.

    11. In Gossai Ch. Das v. Beauty Das (supra) , it was contended in the revisional application filed before the High Court that the wife’s application under Section 125, Cr.P.C. was not maintainable since an application under Section 24 of the Hindu Marriage Act was pending before the Matrimonial Court concerned and that pending the disposal of the application under Section 24, the proceeding under Section 125 should remain stayed. Justice J.N. Hore, as his Lordship then was, held that a proceeding under Section 125 of the Code of Criminal Procedure, 1973 is an independent proceeding unaffected by the provisions of Sections 24 and 25 of the Hindu Marriage Act, and Sections 18 and 20 of the Hindu Adoption and Main tenance Act, 1956 and that it cannot be held that an application under Section 125 of the Code of Criminal Procedure is not maintainable simply became an order of alimony pendente lite has been passed under Section 24 of the Hindu Marriage Act, 1955 in a matrimonial proceeding between the parties, and that there is also no question of staying the proceeding under Section 125 of the said Code fill the disposal of the matrimonial suit. But his Lordship, at the same time, held that the amount paid as alimony pendente lite in the matrimonial suit by the husband to the wife may he adjusted against the maintenance payable under Section 125 and accordingly directed suitable modification of the Magistrate’s order under Section 125, Cr.P.C.

    12. In the unreported decision of our High Court in connection with the criminal revision NO. 2504 of 1995, cited by Mr. Goswami, it was urged on behalf of the revisionist husband that the Magistrate did not consider the interim maintenance which was granted to the wife in the matrimonial suit and has, accordingly, committed an error and his lordship, while dealing with the question of quantum of maintenance allowance, was of the view that the amount awarded by the Magistrate was liable to be reduced in view of the maintenance pendente lite granted in favour of the wife in the matrimonial suit, so long the order of maintenance pendente life in favour of the wife remained in force and allowed the husband’s plea of adjustment with liberty to the wife to make suitable application before the appropriate Court for modification of the quantum of maintenance, in the event of any change in the quantum of maintenance in the matrimonial suit or of the disposal of the suit itself.

    13. It may be useful here to refer to a Division Bench decision of our High Court presided over by A.M. Bhattacharjee, J. as his Lordship then was, , Geeta Chatterjee v. Probhat Kr. Chatterjee. The respondent-wife in the appeal before the High Court filed an application under Section 24 of the Hindu Marriage Act for maintenance pendente lite and expenses of the appeal against the appellant-husband. In the Court below, the husband did not contest the wife’s application for maintenance pendente lite and the Court passed an order directing the husband to pay to the wife Rs. 350/- as maintenance during the trial. Before the High Court in the appeal, however, the application by the wife for maintenance pendente lite and also for expenses for the appeal was seriously opposed by the husband-appellant on the ground that he has come to learn that the wife owns valuable lands in Calcutta and could not be regarded as one who “has no independent income sufficient for her support” within the meaning of Section 24 of the Hindu Marriage Act so as to be entitled to invoke that Section. The question arose as to whether in ordering maintenance pendente lite under Section 24, the Court shall have regard only to the income of the applicant and not to her or his asset or property. The High Court answered the question in the affirmative. It was of the view that the amount of Rs. 350/- ordered by the Court below, was quite reasonable. The High Court was also of the view that the husband should pay to the wife a sum of Rs. 500/- as expenses of the proceedings before the High Court. It was brought to the notice of the High Court during the hearing of the appeal that the wife obtained an order in her favour under Section 125 from the Criminal Court directing the husband to pay the wife Rs. 200/- per month and the High Court allowed the adjustment of the said sum of Rs. 200/- against the sum of Rs. 350/-. It directed the husband to pay to the wife a sum of Rs. 350/- after deducting therefrom the amount that he would be paying m compliance with the order of the Criminal Court. It is thus clear that the Division Bench allowed adjustment of the lower amount (Rs. 200/-) awarded by the Magistrate against the higher amount (Rs. 350/-) awarded by the Matrimonial Court.

    14. Reference may also be made to two other decisions of the Allahabad High Court on this point. They are reported in I (1985) DMC 175; Puspa Devi v. Anup Singh and I (1990) DMC 38, Khem Chand v. State.

    15. In I (1985) DMC 175 (supra), the wife filed an application before the Judicial Magistrate under Section 125, Cr.P-C. for maintenance allowance. During the Course of that proceeding, the husband filed an objection on the ground that in a divorce proceeding between the parties the wife was already getting monthly allowance. The Magistrate rejected the application of the opposite party-husband. Aggrieved by the order of the Magistrate, the husband filed an application before the Sessions Judge. The Sessions Judge dismissed the application under Section 125 on the ground that the applicant is already getting maintenance allowance in the divorce proceeding under Section 24 of the Hindu Marriage Act. Aggrieved by this order of dismissal, the wife came up in the revision before the High Court and it was contended on behalf of the applicant- wife that the allowance awarded under Section 24 is for a temporary period during the pendency of a divorce case and that the said allowance cannot be considered to be the maintenance allowance inasmuch as it covers the part of the expenses. The High Court observed that the proceeding under Section 125, Cr.P.C. and Section 24 of the Hindu Marriage Act are quite independent proceedings and the maintenance allowance under Section 24 is for a temporary period and that the order under Section 24 of the Hindu Marriage Act, cannot override the order of Section 125, Cr.P.C, But, at the same time, the High Court was of the view that the Magistrate while passing an order under Section 125 may give such direction so that the amount awarded by the Civil Court under Section 24 may be adjusted during such ‘period for which the order directing maintenance allowance under Section 24 subsists. Accordingly, the case was sent back to the Court of trial Magistrate for rehearing with the direction to give due weight to the order passed under Section 24, as indicated above.

    16. In the later decision of the Allahabad High Court in Khem Chand v. State and Anr. (supra), the High Court was hearing a revision by the husband directed against an order granting maintenance allowance to the wife under Section 125, Cr.P.C. and it was contended on behalf of the husband that he has already filed a petition for divorce and in that divorce proceeding, he has been directed to pay maintenance to the wife. The High Court directed adjustment of the amount paid towards maintenance in the matrimonial proceeding against the maintenance payable under Section 125, Cr.P.C. The Court held that double payment of maintenance is not intended by law and that if any money has been deposited towards the payment of maintenance in the divorce proceeding the same was liable to be adjusted in the payment of maintenance ordered under Section 125, Cr.P.C.

    17. In the Andhra Pradesh High Court decision in T. Rajender Singh v. Maya Devi, reported in 1996 Cr.L.J. 2384, which was cited by Mr. Talukdar, it was held that during the operation of the order of interim maintenance under Section 24 of the Hindu Marriage Act, the maintenance granted by the Criminal Court under Section 125, Cr.P.C. shall also continue to be paid and that both the orders of matrimonial Court and Criminal Court are required to be complied with till the final decision is rendered by the Civil Court and that it is only after the rights of the parties are finally decided, that the party can approach the Criminal Court under Section 127 of the Cr.P.C. for cancellation or variation of the order under Section 125. The question whether or not any adjustment between the two amounts-one awarded under Section 24 by the Matrimonial Court and the other awarded under Section 125 by the Criminal Court – would be permissible does not appear to have been specifically raised nor considered in the said decision and as such, this decision will not be of much avail to the opposite party on the question of admissibility of the p lea of adjustment which is confronting us in the present case.

    18. Thus, following the three decisions of our High Court referred to above, namely, Geeta Chatterjee v. Probhat Chatterjee, (supra); Gossai Ch. Das v. Beauty Das (supra) and the unreported decision in the case of Manoj Chowdhury v. Jharna Chowdhury as well as the two decisions of the Allahabad High Court reported in Puspa Devi v. Ann? Singh (supra), and Khem Chand v. State (supra), it can be safely held that the plea of adjustment is quite maintainable and the Supreme Court decision in Ramesh Chancier (supra) does not, in my opinion, militate against this view.

    19. The matter can also be looked at from another angle. Obviously, the object of Section 125 is meant to achieve a social purpose. The object is to prevent vagrancy and destitution and also to provide quick and summary remedy to a class of persons who are unable to maintain themselves. It is true that this is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution, as observed by the Supreme Court in the Ramesh Chander’s case (supra). But then, Section 125, Cr.P.C. can be invoked by a wife only when she is unable to maintain herself. The expression “unable to maintain” connotes that the wife, has no other means or source to maintain herself. Inability on the part of the wife to maintain herself is undoubtedly a sine qua non for the grant of maintenance allowance under Section 125, Cr.P.C. If a particular wife has some other means or source sufficient to maintain herself, there would be no point in awarding any further allowance in her favour so long such means and source continues to subsist. In the instant case, the wife has already obtained an order from the Matrimonial Court directing the husband to make payment of Rs. 700/- per month towards her own maintenance pendente lite under Section 24 of the Hindu Marriage Act and another order (the impugned order) from the Magistrate’s Court under Section 125, Cr.P.C. directing payment of a sum of Rs. 800/- per month by the husband towards her maintenance. It has not be contended on behalf of the wife-opposite party that the amount of Rs. 800/- that has been awarded by the Magistrate under Section 125, Cr.P.C. by the impugned order is not at all sufficient to meet the requirements of her maintenance according to her standard of life. She has not assailed the impugned order of the Magistrate with regard to the quantum of allowance that has been awarded by the impugned order. We can, therefore, take it for granted that, for the present, a sum of Rs. 800/- would be sufficient for her maintenance per month. Viewed from this angle, allowing the plea of adjustment, in such a case, would not in my opinion, militate against the object of Section 125, Cr.P.C. If, on the other hand, the husband petitioner’s plea of adjustment be negatived only on the ground that the order under Section 24 of the Hindu Marriage Act is a temporary order and not a final determination of the exact quantum to which the wife would be entitled as of right towards her maintenance allowance or on the ground that the Magistrate’s jurisdiction to grant maintenance allowance under Section 125 remains unaffected by the order under Section 24 of the Hindu Marriage Act, it would virtually mean saddling the husband-petitioner with a liability to comply with both the orders and make the double payment of maintenance allowance, irrespective of the question other actual requirements of her maintenance. I am afraid, such a course would not be in consonance with the fundamental concept of justice, equity and good conscience. The order under Section 24 may be temporary and not a final determination and it is true that if an order for permanent alimony is made under Section 125, it will automatically supersede the alimony pendente lite. But, if the amount of maintenance pendente life is discernible from the order under Section 24 and if the said amount is paid by the husband there is no reason for disallowing adjustment of such payments against the amount awarded under Section 125, even if the latter amount is quite sufficient for the wife’s maintenance. If such payment is temporary, the adjustment will also be temporary and will continue to be made as long as the payment would be made. The mere fact that the order under Section 24 is temporary cannot thus constitute a good ground for making claim for adjustment inadmissible if it is otherwise admissible for the purpose. Adjustment cannot, however, be allowed as a matter of course. Whether such a plea would be admissible would depend upon facts and circumstances of each particular case.

    20. Thus, having regard to the facts and circumstances of this case, I am inclined to hold that the amount paid by the petitioner-husband to the opposite party-wife towards her maintenance in pursuance of the order passed by the Matrimonial Court under Section 24 of the Hindu Marriage Act is liable to be adjusted against the amount payable under Section 125 of Cr.P.C. towards her maintenance.

    21. In such view of the matter, the impugned order is liable to be made subject to the modification to the effect that the amount paid as alimony pendente lite in the matrimonial suit by the petitioner-husband to the opposite party No. 2 be adjusted against the maintenance payable under the impugned order. In the result, the revisional application succeeds and is hereby allowed subject to the modification of the impugned order as directed above.

    False allegations of illicit relation with girls is cruelty. Husbnd wins Dvrc. NO Jewel returned 2 wife ! CAL HC

    In this case, the CAL HC decrees that a woman making false and unfounded allegations about husband’s illicit relations is cruelty. The court goes on to say that even if such allegations were made AFTER the institution of the suit, they tantamount to cruelty !! quoting a large number of cornerstone cases, the Husband is granted divorce !

    The Hon court observes : “….. written statement, ….wife alleged that the petitioner used to coach a girl at Konnagore and fell in love with her. It was also alleged that the petitioner had illicit connection with the said girl. She did not stop these. Even in her deposition she has stated that the petitioner used to mix with another girl and that when she protested, there was a quarrel with him over this. So in her deposition she also persisted that her husband had illicit connection with another girl. But, barring evidence of her own, she could not adduce any evidence to prove the above mentioned allegation. This allegation, needless to say, has been denied by the petitioner-husband. … She has, as indicated above, spoken of such allegation. But her witnesses have not said anything in this regard. Her own brother Chandidas Banerjee (witness No. 3) has not said anything in this regard. Evidence of witness No. 2 Nepal Chandra Mukherjee in this regard is extremely vague. … Before institution of the instant suit, the respondent-wife made an application under Section 125 of the Code of Criminal Procedure claiming maintenance against her husband. In this application she did not allege that her husband had love affairs or illicit contection with any girl. …. So in the facts and circumstances of the case and on consideration of the evidence on record we hold that such allegation of the respondent-wife is false and without any foundation. It is now well settled that such false allegation against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelty will be valid ground for passing a decree of divorce under the provision of Section 13(1)(ia) of the Hindu Marriage Act…..”

    while the court is ready to order some permanent alimony to the wife (who also maintains her son), the court refuses to order her any Jewels etc

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    Calcutta High Court

    Amarendranath Sanyal vs Krishna Sanyal on 1 June, 1992

    Equivalent citations: (1993) 1 CALLT 301 HC, I (1993) DMC 565

    Author: S Guin

    Bench: A Bhattacharjee, S K Guin

    JUDGMENT S.K. Guin, J.

    This appeal is directed against the judgment and decree passed by the learned District Judge, Hooghly on 22 9 88 in Matrimonial Suit No. 161 of 1985 whereby he dismissed the suit.

    1. The petitioner-husband, who is the appellant here. brought the above suit against his wife, who is the respondent here, for dissolution of the marriage by a decree of divorce on the ground of desertion and cruelty. The wife contested the suit by filing a written statement.

    2. Undisputedly the marriage between the parties was solemnised according to Hindu rites on 13.3.79 and a son, who is now about 12 years old, was born out of this wedlock. It is also not disputed that since 15.10.83 the parties have been living separately and that the son, born out of this wedlock, has been living with his mother. Both sides adduced evidence-oral and documentary in support of their respective cases before the learned District Judge who on consideration of the same has held that the plaintiff failed to prove cruelty or desertion as alleged by him. With these findings, he dismissed the suit.

    3. Being aggrieved the petitioner-husband has preferred the instant appeal challenging the correctness and propriety of the findings as arrived at by the learned District Judge. It has been contended on behalf of the appellant that the learned District Judge should have passed a decree of divorce on the ground of cruelty and desertion. The respondent, however, has resisted this appeal.

    4. Having heard the learned Counsel of both the parties and having gone through the evidence on record, we are not inclined to interfere with the finding of the learned District Judge with regard to desertion. However, we are not inclined to support his finding as to cruelty. In paragraphs 13 and 14 of the written statement, the respondent-wife alleged that the petitioner used to coach a girl at Konnagore and fell in love with her. It was also alleged that the petitioner had illicit connection with the said girl. She did not stop these. Even in her deposition she has stated that the petitioner used to mix with another girl and that when she protested, there was a quarrel with him over this. So in her deposition she also persisted that her husband had illicit connection with another girl. But, barring evidence of her own, she could not adduce any evidence to prove the above mentioned allegation. This allegation, needless to say, has been denied by the petitioner-husband. In this case the respondent-wife has examined three witnesses including herself. She has, as indicated above, spoken of such allegation. But her witnesses have not said anything in this regard. Her own brother Chandidas Banerjee (witness No. 3) has not said anything in this regard. Evidence of witness No. 2 Nepal Chandra Mukherjee in this regard is extremely vague. According to him the respondent-wife told him that her husband had some illicit connection with some girl. So he has got no direct knowledge whether the petitioner-husband had any illicit connection with any girl. Before institution of the instant suit, the respondent-wife made an application under Section 125 of the Code of Criminal Procedure claiming maintenance against her husband. In this application she did not allege that her husband had love affairs or illicit contection with any girl. Before institution of the instant suit she also appears to have made a complaint to the General Manager of the Government of India Press where the petitioner-husband used to serve (vide Ext. 8). In this complaint against her husband, she did not make any allegation that her husband had any love affairs or illicit connection with any girl. So in the facts and circumstances of the case and on consideration of the evidence on record we hold that such allegation of the respondent-wife is false and without any foundation. It is now well settled that such false allegation against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelty will be valid ground for passing a decree of divorce under the provision of Section 13(1)(ia) of the Hindu Marriage Act. In the case of Nimai Kumar Ghosh v. Smt. Mita Ghosh, reported in 89 C.W.N. 904 a Division Bench of this Court has held that any imputation against the character of any spouse made either by the wife or by the husband on mere suspicion and without any foundation would amount to mental cruelty and would be a valid ground for passing a decree under the provision of Section 13(l)(ia) of the Hindu Marriage Act. A Division Bench of this Court presided over by my learned brother, A.M. Bhattacharjee, J. in the case of Harendranath Burman v. Suprova Burman, has held that unfounded or baseless allegation of adultery by one spouse against the other constitutes mental cruelty of the gravest character to warrant divorce. In the case of Smt. Santana Banerjee v. Sachindra Nath Banerjee, , the wife alleged illicit sexual relation of her husband with an office colleague and also indulged in making reckless, false and motivated allegation against her husband and his close relation not only in her written statement but also in her deposition. Another Division Bench of this Court presided over by G.N. Ray, J. (as he then was) has held in that case that such allegations constitute cruelty of a very grave nature. We respectfully agree with and rely upon the decision as referred to above. It is true that the allegations, as to character of the petitioner-husband were made by the respondent-wife after institution of the instant suit. But it is well settled that such post suit allegations or events may be taken into consideration to shorten the litigation and to do complete justice between the parties. Relying upon the decision of the Supreme Court in the case of Shikhar Chand v. Digambar Jain, , the Division Bench of this Court has held in the case of Harendra Nath Burman v. Suprova Burman (supra) that the allegation made in the written statement and in the deposition can and should be taken note of in matrimonial proceeding without driving the petitioner to another proceeding on the ground of such cruelty. It has further been held that it is open to a Court, including a Court of appeal, to take notice of events which happened after the institution of the suit and afford relief to the parties where it is necessary to do in order to shorten litigation or to do complete justice between the parties. The same view has also been expressed by the Division Bench in the case of Smt. Santana Banerjee v. Sachtndra Nath Banerjee (supra). We see no reason to take a different view. So, though the allegation was made by the respondent-wife regarding the character of petitioner-husband in the written statement and was repeated in her deposition, such post-lis allegation can and should be taken note of in the instant matrimonial proceeding without driving the petitioner-husband to another proceeding on the ground of such cruelty. Thus on consideration of the facts and circumstances of the case and also having regard to the decisions as referred to above, we hold that the aforesaid unfounded and baseless allegations made by the respondent-wife against the character of the petitioner-husband in written statement and also in her deposition constitute mental cruelty of the gravest character to warrant a divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    5. Before grant of divorce on the ground as embodied in Section 13(1)(ia) of the Hindu Marriage Act let us consider whether a decree of judicial separation will serve the purpose in the facts and circumstances of the case. Undisputedly the parties have been living separately since 15.10.83 i.e. for more than 8 years. We have seen that the respondent-wife made baseless and false allegations against her husband to the effect that he had love affairs and illicit connection with another girl. In the facts and circumstances of the case it appears to us that the marriage has broken down irretrievably and irreparably and that no useful purpose would be served by passing a decree of judicial separation on the ground of cruelty. So we are of the opinion that in the facts and circumstances of the case the petitioner-husband is entitled to a decree of divorce on the ground of cruelty.

    6. At the conclusion of the hearing of appeal, the respondent-wife filed two applications one under Section 25 of the Hindu Marriage Act for permanent alimony and another under Section 27 of the said Act for return of the articles mentioned in “Annexure A” to the application. Mr. Mukherjee, learned Counsel appearing for the appellant raised no objection to the application under Section 25. But be has raised serious objection with regard to the application under Section 27. He has argued that as the respondent- wife claimed the articles and ornaments mentioned in the application as her own stridhan property, the provision of Section 27 cannot be invoked with regard to such stridhan property of the respondent-wife. He has, however, got no objection if the items of furniture such as cot (double bed), steel almirah (big size) and the dressing table are directed to be returned to the respondent-wife. In our opinion, contention as raised on behalf of the appellant must be upheld. In the application under Section 27 the respondent-wife has prayed for return of the ornaments and articles on the allegation that the said properties are her stridhan properties and so belong to her. But Section 27 of the Hindu Marriage Act provides that the Court may make such provision in the decree with respect to the property presented, at or about the time of marriage, which may belong jointly to both the husband and wife. So the provisions of Section 27 can only be invoked for return of properties which were presented at or about the time of marriage and jointly belong to both the husband and wife. In this connection our attention has been drawn to a decision of the Division Bench of this Court presided over by my learned brother, A. M. Bhattacharjee, J. in the case of Sibnath Mukhopadhyay v. Sunita Mukhopadhyay . It has been held therein that Section 27 on its express terms would apply to such property only which (a) has been presented at or about the time of marriage and (b) may belong jointly to both the husband and wife. So Section 27 has no manner of application to the properties which exclusively belong to the wife or to the husband. The ornaments as mentioned in the Annexure ‘A’ to the application under Section 27 have been claimed by the respondent-wife as her stridhan and exclusive properties and as such the respondent-wife is not entitled to an order for return of those articles under the provision of Section 27. So the prayer for return of those ornaments must be rejected. However, she would be at liberty to seek an appropriate relief with regard to those ornaments as available to her under the general law. The cot, steel almirah and dressing table are undoubtedly of common use and may be meant for both the husband and wife. Moreover the learned Advocate for the appellant has conceded that those articles of furniture may be directed to be returned to the respondent-wife. So in the decree there would be a direction for return of the said articles to the respondent-wife. The application under Section 27 thus succeeds in part.

    7. Under Section 25 of the Hindu Marriage Act any Court exercising jurisdiction under the said Act may, at the time of passing any decree on application made to it for the purpose, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just. In her application the respondent-wife prayed for payment of sufficient permanent alimony but she did not quantify it. Now the question arises as to what should be the amount of permanent alimony, whether it should be paid in a lump sum or whether it should be paid monthly. That the respondent-wife, with whom the son born out of this wedlock is living, has no income or property of her own has not been disputed before us. It appears from the evidence on record that she has been living in the house of her brother. The son is now aged twelve and so is now school going. Mr. Sinha learned Advocate for the respondent-wife has submitted that since the petitioner-husband made default in payment of alimony pendente lite and since he has already retired from the service and received pensionary benefit, a gross sum may he given as permanent alimony so that the respondent-wife may not be put into any trouble in future in the matter of maintaining herself and her son This submission appears to us to be reasonable. The petitioner used to serve in the Government of India Press and he has already retired on attaining the age of superannuation. It also appears that he made default in payment of alimony pendente the. So in the facts and circumstances of the case it appears to us to be reasonable that a gross sum should be awarded as permanent alimony. Mr. Sinha, learned Advocate for the respondent-wife has further submitted that lump sum of Rs. 45,000/- to 50,000/- may be awarded as permanent alimony to the respondent-wife. We also called for a report from the Managar, Government of India Press to know what were the pensionary benefits available to the petitioner-husband. A reply has been received and the same has been placed on record. From the letter received from the Government of India Press it appears that the petitioner-husband is entitled to get pensionary benefits as mentioned below :-

    (1) C.G.E.G.I.S. Rs. 3,456.00
    (2) D.C.R.G. Rs. 32,175.00
    (3) Commuted value of pension Rs. 40,668.00
    (4) Leave encashment Rs. 25,000.00
    (5) G.P. Fund. Rs. 85,374.90

    8. Besides the abovementioned pensionary benefits the petitioner-husband will get pension at the rate of Rs. 649/-+ D.A. relief per month. Thus it is clear that besides the monthly pension as mentioned above, the petitioner-husband is entitled to get other pensionary benefits to the extent of Rs. 1,86,273.00 P. Thus having considered the income and properties of the parties and also the conduct of the parties and the facts and circumstances of the case, we think it reasonable to grant a gross sum of Rs. 30,000/-as permanent alimony to be paid by the petitioner-husband to the respondent-wife and there will be direction to that effect in the decree.

    9. In the result, this appeal is allowed. In the circumstances of the case we make no order as to cost. The judgment and decree of dismissal as passed by the learned District Judges, Hooghly in Suit No. 161 of 1985 are set aside. The suit is hereby decreed. ‘ The marriage between the parties is hereby dissolved by a decree of divorce on the ground of cruelty as embodied in Section 13(l)(ia) of the Hindu Marriage Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    10. The respondent-wife do get permanent alimony of Rs. 30,000/-from the petitioner-husband and the petitioner-husband is directed to pay the said amount within three months from this day. The petitioner-husband is also directed to return the articles of furniture namely, cot (double bed), steel almirah (big size) and the dressing table as mentioned in Annexure A to the application under Section 27 to the respondent-wife within three months from this day. The respondent-wife, however, will be at liberty to seek the appropriate reliefs with regard to her alleged stridhan properties i.e, ornaments as are available to her under the general law. The applications under Sections 25 and 27 of the Hindu Marriage Act are thus disposed of as indicated above.

    A.M. Bhattacharjee, J.

    11. I agree.

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