Tag Archives: calcutta HC

NO 125 interim maintenance due to doubts on wife’s earnings !!. Time limit to close case. Cal HC

NO 125 interim maintenance due to doubts on wife’s earnings !!. HC refuses to intervene and grant the wife any money at interim stage !!

In this case the SDJM rejects wife’s prayer for interim maintenance. The wife goes on appeal up to HC. At the rial court, the wife has been asked to submit her income tax returns and finally the wife is seen as a partner in a well earning travel agency. Husband is sick and left with very little income. HC refuses to grant wife any interim maintenance. HC analyses the the words and meaning of sec 125. Good case that reiterates that EVERY WIFE is NOT entitled to Sec 125 maintenance !!


Calcutta High Court

Sm. Swastika Sen vs The State Of West Bengal And Sri … on 3 December, 2002

Equivalent citations: (2003) 2 CALLT 359 HC, I (2004) DMC 66

Author: M Basu

Bench: M K Basu

JUDGMENT M.K. Basu, J.

  1. This revisional application under Sections 482 Cr.PC is directed against the order dated 7.1.2002 passed by the learned SDJM, Alipur in Case No. M-244/01 pending before that Court under Section 125 CrPC rejecting a prayer for interim maintenance of the petitioner and interim award of Rs. 1500/- per month on account of the child till the hearing and disposal of the main petition. The case of the petitioner is as follows. She was married to the opposite party No. 2 Promit Sen according to Hindu rites. On 18th June, 1998 soon after the marriage she was subjected to severe mental and physical torture by the opposite party No. 2 and her in-laws. The opposite party No. 2 was whimsical, selfish and irresponsible and he used to abuse the petitioner and to pick up quarrel with her every now and then on baseless and false accusations. She used to be constantly intimidated, threatened and assaulted by the opposite party No. 2 on a number of occasions on the ground of his dissatisfaction in respect of articles given by her parents during their marriage. Ultimately she was sent by the opposite party No. 2 and her in-laws to her parental home where she has been residing till now and the expenses of her and her child’s maintenance are being borne by her father. The opposite party No. 2 neither care to bear any such expense nor paid any visit to her father’s house nor take any information about them. She has no independent source of income. Under such circumstances she has filed the petition under Section 125 Cr.PC in question claiming maintenance from the opposite party No. 2 on account of herself as well as the child who was born out of this wedlock. The petitioner also filed a criminal case against the opposite party No. 2 and the other in-laws under Sections 498A and 406 IPC which is in the Court of the learned Magistrate being Jadavpur P.S. Case No. 190/2000. The Police after investigation has submitted a charge sheet in that case against the opposite party No. 2 and the other in-laws and that case is still pending in the Court of SDJM, Alipur for trial. The opposite party No. 2 is a professional singer and is the owner of an Export oriented Concern Style as M/s. Super Exports having its office at Mission Road, Bangalore-56, He is also a major shareholder of M/s. Super Plastic wherefrom he earns more than Rs. 1 1/2 lakhs per month. The petitioner has 10% share in a Travel Agency Firm under this Style M/s. Capri International which is owned by her mother but the form of business of that Firm is absolutely uncallable and since July 2001 she did not receive any remuneration from that firm in any manner. She has prayed for grant of maintenance to the tune of Rs. 20,000/- per month for herself and Rs. 10,000/- per month for the child. https://vinayak.wordpress.com/?s=maintenance
  2. The learned SDJM after hearing both sides and perusing a document filed by both the parties passed the impugned order rejecting the prayer of the petitioner for grant of interim maintenance and directing payment of Rs. 1500/- per month by way of interim maintenance for the child. Being aggrieved by this order the petitioner has preferred this revisional application challenging the same as erroneous and unjustified being passed on the basis of vague surmises and conjectures.

  3. The contention of Mr. Basu, the learned advocate for the petitioner has been that it is not understood wherefrom the learned Magistrate could draw the conclusion that the petitioner was not a destitute lady and need not require any maintenance. Mr. Basu has criticised the impugned order as improper and perverse and his findings that the petitioner had some income of her own as totally unwarranted. According to Mr. Basu, the learned SDJM has not given any reason for coming to such finding and passing the impugned order and being a non-speaking order it has been rendered liable to be set aside. In support of his contention he refers to the decision wherein it has been held that assigning of reason in an order passed by an Administrative Authority or a judicial forum is of utmost importance and necessity. This is so because giving of reason is the sine qua non of ajudicial order and is a consequence of the principle of natural justice. Mr. Basu then submits that the provisions of the Cr.PC having been amended by the Act No. 50 of 2001, a Magistrate is no longer required to keep the amount of maintenance confined within the limit of Rs. 1500/- and in view of such Amending Act, the limit is only reasonableness. According to him, considering the standard of living of the parties and the rising price index in respect of the essential articles which are being necessaries the learned Magistrate ought to have awarded a much higher amount by way of maintenance for the child. So far as the wife is concerned, according to Mr. Basu, she having no independent source of income is entitled to get a reasonable amount of maintenance from the opposite party No. 2 whose income has already been mentioned above. Mr. Basu refers to a number of decisions of the Apex Court to bring home his point that the husband is under a statutory duty to provide maintenance to his married wife and under the shastric mandate also such an obligation has been cast upon the husband irrespective of whether the wife has got any stridhan properties or even any earnings. Mr. Basu’s further contention is that in view of the Central Amendment of Section 125 of the Cr.PC the limit of award of maintenance under the said section need not be confined to Rs. 1500/- and the learned Magistrate is now at liberty to award a higher amount if found justified or necessary. The question, however, has been raised as to whether the said amendment has got any retrospective effect, that is to say, whether the pending proceedings should be governed by the same. Inasmuch as, it came into force with effect from 24th September, 2001 when this proceeding had already been pending. Mr. Basu has strenuously argued that such a beneficial legislation will have retrospective effect and such pending proceedings will come under its purview. In this connection he refers to the decision reported in (1) , (2) . (3) , (4) AIR 1978 SC 741 & 1807, (5) AIR 1991 SC 1256 and (6) 2000 CCrLr (Cal) 179.

  4. As against this, Mr. Gooptu, the learned advocate for the opposite party No. 2 has argued that the petitioner cannot be entitled to get any award of maintenance for herself, because she has an independent source of income, a fact which is prima facie established from the document, namely, Income Tax Return submitted by her before the Income Tax Authority and the learned Magistrate was perfectly right refusing to award any interim maintenance at this stage after being satisfied prima facie from the documents filed by the parties that the petitioner having submitted Income Tax Return had definitely some source of income of her own and in view of the legal position she could not be entitled to get any maintenance from the husband. Mr. Gooptu draws my attention to pages 80 to 83 of the LCR. The Income Tax Statement pertaining to the Assessment Year 1999-2000. The next contention of Mr. Gooptu is that the amount of Rs. 1500/- as awarded for the child would not be enhanced, inasmuch as, the amendment of Section 125, Cr.PC as pointed out by Mr. Basu cannot have any retrospective effect. In support of the contention he cites the following reference: (1) (Y. Arul Nadar v. Authorised Officer, Land Reforms, Thanjavur) wherein it has been held that as per the general rule when an amendment is introduced in the statute governing the case already pending, the rights and obligations of parties should be decided only according to the law which existed when the action was begun unless a clear contrary intention is evident in the Amending Act and there could not be any imputation of retrospective operation to an Amending Act and that could be done only by the Amending Act either expressly or by necessary implication; (2) (Bhagat Ram Sharma v. Union of India and Ors.) wherein it has been held that it is a matter of legislative practice to provide while enacting an amending law that an existing provision shall be deleted and a new provision substituted and such deletion has the effect of repeal of the existing provision and such a law may also provide for the introduction of a new provision. It bas been further held therein that amendment is in fact a wider term and includes abrogation or deletion of a provision in an existing statute and an amendment of substantive law is not retrospective unless expressly laid down or by necessary implication inferred; (3) AIR 1924 All 563 (Kashmiri Lal v. Kishen Deb wherein it has been held that inasmuch as the accused had incurred the liability to have his prosecution sanctioned and the complainant on the dismissal of his application by the subordinate Judge had acquired a right to apply for sanction to the Appellate Court, Section 6(sic) of the General Clauses Act applied to the case and the repeal of the old Section 195 did not affect the investigation and (4) AIR 2000 Mad 167 wherein it has been held that in case of Motor Vehicles Act being amended and each amending provision providing for no fault liability cannot be given retrospective effect, because if such retrospective effect was given, then it would definitely affect existing right or obligation of the owner of the vehicle in question and the insurer for no fault of theirs and it has to be decided in consonance with the law as it stands on the day of its moving, since it is a matter pertaining to procedure. It has been further held in this judgment that when two interpretation are found possible regarding the question of retrospectivity, the interpretation that the provision is prospective will be preferred.

  5. Mr. Gooptu placing reliance upon the decision (Bhagban Dutt v. Sm. Kamala Devi and Anr.) contends that a wife’s right to maintenance is not absolute and in determining the amount of maintenance a Magistrate is competent to take into consideration the separate income and means of wife. Their Lordships in this case have further observed that any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own to misuse the section as a punitive weapon against their husbands. https://vinayak.wordpress.com/?s=maintenance

  6. Mr. Gooptu then contends that Section 125 CrPC is not intended to provide for a full and final determination of the status and personal rights of the parties at the interim stage and the jurisdiction conferred by this section on the Magistrate is more in the nature of the preventive rather than a remedial jurisdiction and it is certainly not punitive.

  7. He then submits that his client is suffering from chronic thyroid problems due to which he is undergoing medical treatment under the supervision of various doctors and a large amount of money has to be mobilised in order to continue his treatment and such facts are borne out from the medical documents annexed to the written objection filed by this opposite party No. 2 before the trial Court and due to such continued ailment and long absence from this city he is unable to derive any income from his profession, namely, singing Rabindra Sangeet and consequently he has to depend on others for his subsistence and medical treatment as has been stated by him on oath in the affidavit.

  8. Mr. Gooptu then refers to the decision to bring home the point that when affidavits are submitted by the parties in a proceeding for disposal of interim application under Section 125 CrPC, in the event one version is rejected being untrue or not credible at the interim stage pending trial, the other is to be accepted prima facie by the trial Court as proved. Mr. Gooptu has further submitted that the Income Tax Statement of the petitioner pertaining to the relevant year in question, that is, 2000-2001 has not been produced before this Court, though the learned counsel of the petitioner was so directed and on behalf of the petitioner the submission having been made that no return has been filed by her for the subsequent Assessment Year it should be taken that the petitioner having violated the mandatory provisions of the law as she has not submitted the Income Tax Return for the said Assessment Year, she is liable to serious penal consequences under the Income Tax Act and the Indian Partnership Act.

  9. The question for determination in this revisional application is whether the impugned order suffers from any impropriety. By this order the learned Magistrate has refused to grant any interim maintenance in favour of the petitioner-wife, though he has allowed such maintenance for the child. The ground on which her prayer for interim maintenance has been rejected appears to have been couched in the following language.”Some unproved documents are filed by both parties in the form of affidavits and counter affidavits. These documents give some hints from which I prima facie find that the 1st party has some income of her own ……………. In view of the above discussed circumstances I think that the 1st party is not a destitute lady required to be saved from vagrancy…..”

  10. Such a finding perhaps owes its origin to the existence of the Income Tax Return (annexed to the affidavit) submitted by the petitioner, Swastika Sen, for the Assessment Year 1999-2000, that is, for the period from 1.4.1998 to 31.3.1999. However, the learned Magistrate has not made it clear by using express words and that omission has quite pertinently given rise to such a criticism levelled by Mr. Basu against the order. This lapse may of course be due to a poor power of expression on the part of the Magistrate concerned, but the question which seriously arises is whether owing to such a reason, owing to the Presiding Officer’s inability to apply the appropriate words in the reasoning part of his order which may be due to his poor expressive capacity, the order should be thrown away, even though there are good grounds transpiring from the materials on record justifying the passing of such an order.

  11. Section 125(1)(a) CrPC clearly provides that a wife will be entitled to get an award of maintenance, If, inter alia, she is unable to maintain herself. It follows that if a wife is an employed person or has a business and earns a definite sum by way of regular income and.if the Court finds such income as sufficient for the purpose of enabling her to earn her livelihood, then certainly she cannot claim maintenance from the husband. This is the clear dictate of the law and a departure therefrom cannot be permissible. Otherwise, the expression, “if she is unable to maintain herself’ would lose all its meanings. In the present case, the case of the opposite party-husband is that the petitioner is a 50% partner of a Travelling Agency along with her mother running in the name and style of M/s. Capri International and moreover, she is a dance-teacher and her collective income from the aforesaid sources is not less than Rs. 1,20,000/- per annum and this would be disclosed from the I.T. Return submitted by her. A xerox copy of the I.T. Return submitted by the petitioner before the Income Tax Authority for the Assessment Year 1999-2000 relating to the period from 1st April, 1998 to 31st March, 1999 has been filed (vide page 80 of the LCR). This return shows that the gross income which she earned during the said year from her business or profession amounted to Rs. 54,140/- and she paid income tax of Rs. 414/- on this amount during that year. As against this, the petitioner has stated in her counter-affidavit (vide page 68 of the LCR) that the said Travel Agency has become sick industry and the petitioner only has a share to the extent of 10% on the business of that Travel Agency and she gets only Rs. 600/- per month. As regards the Income Tax Return purportedly filed by her, her case is that she was forcibly made to sign this I.T. Return, although she had no income of her own and she wrote a letter to the Income Tax Commissioner dated 18.8.1999 stating that the I.T. Return in question had not been submitted by her since she had no taxable income at all and she was a mere student, but it was actually filed by her husband and further that the said Return though filed does not reflect the correct position. A copy of this letter bearing the stamp of the office of the Income Tax Commissioner initiating its receipt by the officer has been filed. But this letter practically takes us nowhere. Along with this Income Tax Return mentioned above statement that (sic) has been submitted showing that the petitioner earned a gross income of Rs. 54,000/- and odd and paid income tax of Rs. 414/- and they included a balance-sheet, self-assessment challan and a valuation return and the said Income Tax Return appears to have been signed by the petitioner herself. It has got some sanctity in the eye of law. As per the Income Tax Rule an assessee who starts submitting Income Tax Return has to continue submitting such returns every year. If she ceases to earn any income, even then she has to file a Nil Statement by way of Return. Moreover, in her petition the petitioner’s own case is that she has 10% share in the said business and she earns only Rs. 600/- per month. In such an event also she is required to submit a Income Tax Return although her income may not be taxable. But curiously enough, the petitioner does not make any whisper in her affidavits as to whether she has submitted any such Income Tax Return in the subsequent years. During hearing of argument, on being approached by me. Mr. Basu, the learned counsel submitted that his client would not file any copy of such Income Tax Return before this Court relating to the current year. It is not understood whether she has submitted before the Income Tax Authority any such Income Tax Return at all during the current year or the year in question because of her silence in her petition as to this aspect of the matter. As a result, it is not clear as to whether any Return has at all be filed, by her for the relevant year before the Income Tax Authority and accordingly, as argued by the learned advocate for the opposite party, the question of drawing adverse presumption arises. As per the Rule, once a Return has been filed, one is required to go on submitting such Returns every year irrespective of whether one’s income has fallen or decreased. Under such circumstances from the fact that the petitioner has not filed any such Income Tax Return for the relevant year, not she has stated on affidavit that she has not submitted any such Return before the Income Tax Authority for the relevant year, it is to be presumed prima facie that she is witholding the same and . had it been produced, sufficiently rebutted is a question of fact and cannot be determined without reference to the evidence which may be adduced by the parties during the inquiry to be held in the main proceeding.

  12. At this stage when the question of payment of interim maintenance is under consideration and the evidences are yet to be adduced by the parties such documents and circumstances should serve as yardstick, only prima facie, to enable the Court to come to a finding and pass an order touching the question of interim relief. The question raised by the petitioner that the Income Tax Return submitted by her was the result of force or coercion applied by her husband can be decided only after taking evidence from both sides and cannot be adjudicated upon at this stage simply on the basis of a copy of letter allegedly written by the petitioner to the Income Tax Authority, particularly when such an allegation does not find place in her affidavit. It would be unsafe and improper to hold without taking evidence that the Income Tax Return filed by her before the Income Tax Commissioner, which is an official and authentic document, is falsified by a mere letter allegedly written by her to that Authority,

  13. The Income Tax Return prima facie shows that she had an average income of about Rs. 4500/- per month and in view of such earnings of the petitioner being prima facie found from the record, the Court below was not unjustified in refusing to award any interim maintenance for the wife so long as the main matter as not heard and disposed of by obtaining evidence from the parties on the prima facie substantial ground that she could not be said to be unable to maintain herself during the interim period. However, the manner In which the ordering part has been expressed by the learned Magistrate is not happy. Without holding an enquiry he cannot come to such a finding, viz. “….. the 1st party is not a destitute lady required to be saved from vagrancy.” He ought to have used the phrase, “prima facie” otherwise such an observation conveys a wrong signal, as if he is disposing of the issue in the main proceeding once for all — a course which is fraught with the danger of prejudging of the issue which Is to be decided after hearing of the main proceeding. It should not be forgotten that interim orders in respect of such matters are only provisional until final orders are made and such interim relief is granted only subject to what is found and enjoined in the final orders and interim orders which are passed on a prima facie satisfaction of the presiding officer of the concerned Court on the basis of documents or affidavits may very well be altered, varied or even totally vacated after considering the evidence both oral and documentary adduced by the parties during hearing of the main matter.

  14. It is true, as has been argued by Mr. Basu, that the learned Magistrate has not assigned reasons for coming to his conclusions, for example, he has said that the first party is found to have some income, but he does not discuss from which documents he makes this observation, although the fact remains, as I have discussed above, the petitioners drawing an Income regularly has been shown by the document called Income Tax Return. Similarly, the learned Magistrate has made the observations that from some ‘unproved documents’ it has been shown that the lady was not a destitute person. Here again he ought to have elaborately made a discussion about such documents which he was referring to. In the absence of doing that his findings have been rendered unreasoned. Another instance of the impugned order’s being vague and confusing is where the learned Magistrate uses the expression ‘gives some hints’. Giving of hints and furnishing of proof are totally different concepts and on the basis of the former a Court of law cannot pass its verdict either granting or denying a relief sought by any party. Then again, in the concluding part of his order he says that in view of the ‘abovediscussed circumstances’ he thinks that “the 1st party is not a destitute lady required to be saved from variance”. According to Mr. Basu, there is no discussion on this point in the least in the body of the judgment and hence the learned Magistrate’s referring to the ‘above discussed circumstances’ is absolutely hollow. He argues that due to such paucity of reasoning the order becomes perverse and on that score alone it should be given a go-by. But this contention of Mr. Basu is not acceptable to my mind. Simply because reasons have not been assigned by the trial Court for arriving at a particular finding, although from the materials on record it is prima facie found that there exist some good grounds for drawing such conclusions, the said order cannot be set aside on the sole ground that the Court below has not recorded such reasons or grounds. This finding may or may not remain unaltered after evidence as adduced by the parties are considered by the learned Magistrate during the main hearing, but as an interim order it is quite justified. Since this part of the order does not suffer from any illegality or infirmity of law I do not find anything to interfere with the same.

  15. The next point urged on behalf of the petitioner is relating to the second part of the impugned order and is on the alleged inadequacy of the amount of maintenance that has been awarded by the learned Magistrate on account of maintenance of the child, namely, Rs. 1500/-. According to Mr, Basu, on the date on which this order was passed, that is, 7th January, 2002 the amendment of the CrPC in respect of Section 125(d) of the Code had already come into operation and therefore, the learned Magistrate’s hands were not tied and he was not to be restricted regarding the quantum of maintenance to be awarded by him under this section within an amount not exceeding Rs. 1500/-. In other words, since by virtue of the said amendment a Court of Magistrate under this section became entitled to award any sum by way of maintenance which would be deemed to be reasonable in the circumstances, there was nothing to debar the learned Magistrate from fixing an amount by way of maintained exceeding Rs. 1500/- in order to do justice to the rising price and cost of living index and also to the status and standard of living of the petitioner in particular. In support of his argument Mr. Basu refers to a host of decisions of the Apex Court as well as of different High Courts. Thus he cites the decision reported in AIR 1991 SC 1256 (Amirtham Kudumbah v. Sarnam Kudumban) wherein it has been held that in case of a beneficial legislation whatsoever gives restriction use or constitutes an embargo in the way of giving effect to such a welfare enactment should be removed and according to Mr. Basu by stretching this logic to the present case, the benefit of this amendment should be extended to the pending cases also. It may be mentioned here that the above mentioned amendment came into operation on and from 24.9.2001 (vide the Government Notification concerned). Mr. Basu also refers to the decision wherein it has been held that the words of remedial statute should be so construed as to ensure that the relief contemplated under the status in the question may not be denied to the clash intended to be relieved and on the basis of this ruling it should be taken that the amendment of the CrPC in question should have retrospective operation even though nowhere that has been mentioned in express terms. Then Mr. Basu relies upon another ruling (Bengal Immunity Co. Ltd. v. State of Bihar and Ors.) whereunder Their Lordships enunciated certain principles on the strength of which propagated that ail beneficial status should be retrospective operation. The next ruling cited by Mr. Basu is (Muktinarain Jha v. State of Bihar) and (Captain R.C. Kaushal v. Mrs. V. Kaushal) whrerein it was held that the provisions of Section 125 formed a major of social justice for the purpose of protection the weaker section and with that end in view, according to Mr. Basu, any legislation containing beneficial provisions should have retrospective operation.

  16. The second line of Mr. Basu’s argument consists in the point raised by him that even if such a legislation is taken to be prospective, even then there will be no difficulty In granting the relief at the new rate and at the same time maintaining its prospectivity if with regard to a pending proceeding the new rate is applied only on and from the date when the amendment takes effect. In support of this contention he relies upon the decision reported in 1999 CCrLr 116 (Cal HC) and 2000 CCrLr (Cal) 179 (Dhananjoy Samanta v. Sobitri Samanta).

  17. As against this, Mr. Gooptu vehemently argues that this petition for maintenance having been filed on 13.4.2001 this amending provision which came into effect on 24.9.2001 cannot govern this pending proceeding because of the general principle that unless a clear, contrary intention is evident in the amending Act, it cannot be retrospective and must be prospective. In support of this contention, the decision (Y.A. Nadar v. The Authorised Officer, Land Reforms, Thanjavur) is referred to wherein it has been held that when an amendment is introduced in the statute governing the cases already pending, the rights and obligations of parties should be decided only according to the law which existed when the action was begun, unless a clear and contrary intention is evident in the provisions of the amending Act and there could not be imputation of retrospective operation to an amending Act. He also cites a further couple of reported judgments to get his argument strengthened, namely, (1) (Bhagat Ram Sharma v. Unions of India) & (2) AIR 1924 Allahabad 563 which I have already discussed above. https://twitter.com/ATMwithDick?lang=en

  18. Mr. Gooptu raises the question that if the argument of Mr. Basu is taken to its logical extreme, then by virtue of following of such a principle, namely, giving retrospective effect to such an amending provisions we may be led to an irreconcilable situation. Those cases which were filed before the coming into operation of such a legislation, but which were pending at the time when it came into operation and as disposed of without getting the benefit of this enactment will be discriminated against and there may be the emergence of a spate of applications seeking the newly awarded benefit– an exigency which the law never encourage.

  19. Be that as it may, it should not be forgotten that after all this is an application for interim maintenance and the main maintenance application is yet to be heard. If this question, namely, whether the abovementioned amendment of Section 125 CrPC should have retrospective effect or not is decided at this stage, then that may involve the risk of pre-judging of the point falling for determination in the main application under Section 125 CrPC before the learned Magistrate. This is a stage wherein the question of granting of interim relief is taken up for determination and for that purpose such thread-bare analysis of the materials on record, vis-a-vis, the legal position will be highly undesirable and also impermissible. The learned Magistrate has awarded a sum of Rs. 1500/- on account of maintenance of the child by way of interim relief only and that is not the be-all and end-all of the respective cases of the parties and that amount has been fixed only as a provisional one in view of meet the urgency of the situation and the proper and final order as regards all related questions touching this application for maintenance will be passed by the Court of Magistrate after taking evidence from both sides and after hearing their arguments. Hence any observation or verdict given on the controversies raises by the parties on the questions in issue at this stage will be bound to have repercussions on the merits of the matter when the learned Magistrate will take up the same for final hearing and in order to avoid such a possibility of pre-judging of the issues awaiting determination by the learned Magistrate I refrain myself from expressing my views on the contentions of the learned advocate for both sides on this question as to whether the said amendment to Section 125 of the CrPC in question will have retrospective effective or prospective operation and (sic) the learned Magistrate could have granted an award of interim maintenance for the child exceeding Rs. 1500/- a month.

  20. Instead, I am inclined to fix a time-limit within which the main proceeding under Section 125 CrPC in question may be finally disposed of by the Court below, leaving the impugned order intact.

  21. Accordingly, I do not interfere with the impugned order but I direct the learned Magistrate to finally dispose of the main proceeding, that is, the application for maintenance under Section 125 CrPC pending before it, within two months from the date of receipt of the LCR without fail. If any of the parties does not cooperate, the case may proceed according to law notwithstanding such non-participation. While disposing of the main matter on merits the Court below shall not be influenced by any observation made in this judgment regarding the merits and shall adjudicate upon the same quite independently according to the law and as per the evidence that may be adduced by the parties before him. https://vinayak.wordpress.com/?s=125

In the result, the revisional application be dismissed. The LCR be sent back immediately to the Court below along with a copy of this judgment and order.

Interim order of stay, if there is any, be vacated.

Xerox certified copies, if applied for by any party, may be supplied without delay.

 

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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.,)

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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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Filing false 498a, taking away children illegaly, interfering with their education is ALL cruelty. Divorce granted 2 hubby, Cal HC

Filing false 498a, taking away children illegally, interfering with their education is ALL cruelty. EVEN if wife’s stmt not cross examined, it need NOT be accepted in total! Divorce granted 2 husband on grounds of cruelty

Wife files 498a. After compromise, parties get back / live together. Still wife does NOT withdraw / quash criminal complaint ! So parties ultimately separate. However wife raises a false claim of living with husband many months after 498a (i.e.) AS IF her conduct was condoned by the husband ! Husband applies for divorce. Initially it is refused believing wife’s false statements that her cruelty was condoned by husband. On review, Cal HC appreciates the facts and orders divorce 

The Honourable court says that a 498a instituted and kept alive on false allegations in itself amounts to cruelty “….the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband….”

The wife at one point tries to escape sayin “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.” But the Hon HC refuses to accept that contention as she has affirmed her complaints in MANY other places

The court notices that she is blowing hot and cold in many places

The court observes that “There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) …”

The court also takes the interference with the education of children seriously “….. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.….”

so the court concludes “…he totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. ….”

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Calcutta High Court
Pranab Kumar Chakraborty vs Kumkum Chakraborty on 5 July, 2005
Equivalent citations: (2006) 1 CALLT 210 HC, 2005 (4) CHN 146
Bench: D K Seth, J Banerjee

JUDGMENT

1. The appellant has filed this application for review of the judgment and decree dated 25* of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji and Ors. v. State of Madhya Pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors., . Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea & Industries v. Collector, Golaghat, Assam and Anr., 2004(4) SCC 112 (para-14); Srinivasiah v. Balaji Krishna Hardware Stores, ; Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 and Benoy Krishna Rohatgi and Ors. v. Surajbali Misra and Anr., , in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.

2. Mr. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under Section 498A of the Indian Penal Code (IPC) would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in Moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, , to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the principles of cruelty on account of pendency or survival of the proceedings under Section 498A IPC. He also relied, for the same proposition, on the decision in Parison Devi and Ors. v. Sumitri Devi and Ors., . He then contended that there is nothing to indicate that what documentary evidence was not considered. On this ground Mr. Banerjee submits that the review application should be dismissed.

3. We have occasion to hear the matter for days together. Both the learned Counsel continued to elaborate their submissions from various angles. The matter was hotly contested. Both the learned Counsel had referred to the pleadings and the evidence as well as exhibits in relation to the merit of the case. In the process of the elaborate argument, both the learned Counsel had argued the whole appeal in order to substantiate the case for review. Both the learned Counsel suggested that they may be permitted to argue on both the counts and the Court may pass a composite order, namely an order disposing of the review application and in case the review is allowed to dispose of the appeal upon re-hearing in the same process. Accordingly, both the Counsel had addressed the Court. Having regard to the submissions made by the learned Counsel as above, we agreed to the suggestion and heard the application for review and the appeal simultaneously. In these circumstances, by consent of parties, we propose to dispose of the review application along with the appeal.

4. In Green View Tea & Industries (supra), the Apex Court had held that it is permissible to review a judgment if there are mistakes apparent on the face of the record, quoting from the decision in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, at page 630 (para-36) that “It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were based on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. ‘Of all these things respecting which learned men dispute’, said Cicero, ‘there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature’. This very idea was echoed by James Madison (The Federalist, No. 51. p. 352). He said : ‘Justice is the end of Government. It is the end of the civil society, It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit.’ In Srinivasiah (supra), it was held that an assumption that appears to be incorrect on the basis of the materials would be a sufficient ground for entertaining review.

5. The principle of review is settled proposition of law. It does not require elicitation of any principle or decision. Now, therefore, we may examine the ground agitated by Mr. Dasgupta. On the face of the record, it appears that the wife had initiated a proceeding under Section 498A read with Section 342 of the Indian Penal Code (IPC) being Complaint Case No. 1628 C/1991 (Ext. 10 – II) before the learned Chief Judicial Magistrate, Howrah. The husband filed a criminal revision case being Criminal Revision Case No. 403 of 1992 before this High Court for quashing the said proceeding under Section 498A IPC. At the intervention of the lawyers of the parties, the wife was brought back on the assurance that she would withdraw the criminal case under Section 498A IPC. It is not in dispute that the said proceeding under Section 498A IPC has not been withdrawn by the wife and has since been kept pending, though, however, the wife did not take any further steps in the said proceedings. This fact admittedly is on record and was not considered by this Court in the judgment and order under review. This ground would be sufficient to review the order if it is held that the failure of withdrawal of this complaint under Section 498A IPC would amount to cruelty.

6. Since the wife did not take any further steps, it seems and may be presumed that the allegations made against her husband were false. The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate (supra). The allegation under Section 498A IPC against a spouse is disgusting accusation. In the said decision, it was held that subsequent deletion or amendment of the pleadings would not absolve from treating the wife by the husband with cruelty by making earlier injurious reproaches and statements. The impact whereof continued to remain on record, as in the present case where the allegations are still on record and have not been withdrawn, though not proceeded with. This making of false allegation in itself is a cruelty and then the cruelty is further fueled by reason of keeping the allegations under Section 498A IPC alive and surviving despite having agreed to withdraw the same, by reason of non-withdrawal thereof till date.

7. Admittedly, the judgment under review had proceeded to believe the evidence of the wife on account of absence of cross-examination on the question of cohabitation. Absence of cross-examination does not mean that the evidence is unchallenged. In Juwarsingh (supra), the Apex Court had held that the cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept the testimony merely because there was no cross-examination. Similar view was taken in P. Ram Reddy (supra) where it was held that the Court is not bound to accept the statement of a witness simply because there was no cross-examination of that witness. The truth of the evidence is to be tested on the basis of the probabilities and reliability. In the present case, there is evidence to show that the husband and wife were not residing in the same room since before institution of the suit. The allegation of cohabitation bears a date four months after the institution of the suit. This seems to be against all probabilities where the husband and wife are locked in the legal battle for the custody of the children and have been residing separately since before institution of the suit. This seems to be against all probabilities, which appears to have been overlooked. Our attention was drawn to the various contradictions and inconsistencies in the deposition of the wife affecting the credibility of the witness and reliability of the evidence given by her.

8. Even if we may not give credence to the question of cohabitation, but the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband. This is a ground sufficient to allow the review application.

9. It is true, as contended by Mr. Banerjee that an erroneous decision cannot be reviewed; when two views are possible, acceptance of one view cannot be revised; question of belief and disbelief cannot be intervened in a review. In this case the decision may be erroneous. But this erroneous decision was based on an error apparent on the face of the record in considering the existence of the question of cruelty on account of survival of the complaint under Section 498A IPC. The question of condonation of cruelty as contended by Mr. Banerjee does not find any support from the materials on record that the husband had ever condoned the cruelty. As soon the suit is filed on the ground of cruelty, there is no question of condonation of cruelty. The very pendency and survival of the complaint case under Section 498A IPC till the decision under review itself is a cruelty surviving which need no revival by fresh complaint or otherwise. Despite being agreed but the same having not been withdrawn, the wife’s failure to withdraw the same itself revives the cruelty continuous until withdrawn. It is admitted that this complaint has not been withdrawn till today. Therefore, the principle of condonation of cruelty as was sought to be urged by Mr. Banerjee does not find any support from the materials on record. Therefore, the decision laid down in Krishna Sarbadhikary (supra) cited by Mr. Banerjee has no manner of application in the present case.  http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

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  1. Thus, we find that the omission to consider the impact of the survival of the proceedings under Section 498A IPC supporting the ground of cruelty had escaped our notice and that on the question of cohabitation, there were certain cross-examinations and that the evidence of the wife could not be sustained on its own strength and that the husband had repudiated in his evidence and the suggestions of the alleged cohabitation. These are definitely errors or mistakes apparent on the face of the record and are sufficient grounds to review the judgment.11. The facts apparent from record, viz. that the marriage has irretrievably broken and cannot be bridged between the parties and that the parties did not and cannot live together and that there is existence of cruelty on account of survival and/or pendency of the case under Section 498A IPC, having escaped our notice, are sufficient for allowing this application for review.

    Order:

    12. Accordingly, the application for review succeeds and is allowed, the judgment and decree passed by this Court, sought to be reviewed in this review application, is hereby set aside. The application for review is, thus, allowed. The appeal is restored to its original file and number and be re-heard.

    FA No. 12 of 2001

    13. By consent of parties, we have re-heard the appeal simultaneously with the hearing of the application of review of the judgment and decree. Both the learned Counsel argued the case elaborately and in detail and took us through the materials on record. After having re-heard the appeal by treating the same, by consent of parties as on the list for hearing of the appeal, now we propose to decide the appeal in the manner following.

    14. Exhibit 10 is the complaint lodged by the wife against the husband before the Court of the learned Chief Judicial Magistrate, Howrah being Complaint Case No. 1628 C/1991. In the said complaint, the wife as complainant alleged that the husband/accused:

    started to neglect your complainant and also started torturing both physically and mentally during her stay at the house of the accused.

    3. That the accused used to take wine regularly and almost everyday being intoxicated the accused tortured the complainant both physically and mentally and became a regular incident. The accused even has illegal relation with other ladies and used to meet other ladies frequently and without any hesitation.

    4. That the brothers of the accused person are also of the same nature of the accused and also torture your complainant both physically and mentally and with the connivance of the accused the brothers of the accused tried to outrage the modesty of the complainant by force and if your complainant told anything about such behaviour of the brothers of the accused the accused used to reply to bear the matter.

    5. That in spite of such torture both physical and mental your petitioner stayed with the accused and two children namely 1. Kumari Bidisha Chakrahorty, 2. Sri Humpi Chakraborty born out of (in) the said wedlock.

    6. That your complainant tried her level best to stay at the house of the accused but such tortyre became higher and higher and the accused and his brothers almost regularly tortured your complainant both physically and mentally.

    7. The accused also refused and neglected to give the daily means and clothing to your complainant intentionally and willfully and the two children also never receive any love and affection from the accused person on the other hand the accused used to behave very rough and even merciless to the said two children.

    8. That in spite of such behaviour and torture of the accused and his other brothers, your complainant accommodated at the said house but when the torture of the accused and his brothers became intolerable by human being and also for the fear of life of your complainant and also for the safety, security and also for future of her two children your petitioner was compelled to leave the house of the accused person along with her two children on 4.10.91 and since then your complainant is residing at the house of her sister.

    9. That from the date when your complainant left the house of the accused neither came to see your complainant and her two children nor took any information till date.

    10. That suddenly on 4.12.91 the accused along with some persons who identified themselves as police persons came to the house of your complainant and have taken away the said two children of your complainant in a very rough and inhuman manner and your complainant informed the matter before Bally P.S. vide G.D. Entry No. 3 70 dl. 4.12.91.

    11. That thus the accused has committed offence under Section 498A and under Section 342 IPC” [PB-II, pp. 14-16]

  2.  

     

     

15. This allegation was supported by the wife in her examination-in-chief (PB-I, p. 135) namely “It is correct to say that in December, 1991,1 filed a case against my husband under Section 498A of IPC as my husband used to assault me very often.” In her cross-examination (PB-I, p. 138), she said “I admit herein that all statements made in my application under Section 498A IPC and also in my application for recovery of my children in Criminal Courts are all correct and true.” She further said in her cross-examination (PB-I, p. 139) that “I filed a case under Section 498A IPC against my husband for which any husband submitted an application in the High Court for quashing the said proceeding under Section 498A of IPC and that proceeding is still pending in the Hon’ble High Court. It is correct to say that there is in fact no petition of compromise of 498A IPC in between myself and my husband.” At page 141 (PB-I) in her cross-examination she stated, “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.”

16. It appears that these disparaging and disgusting allegations were made and were supported even at the time of examination-in-chief and cross-examination of the wife. Whereas at page 136 (PB-I) in her examination-in-chief, she said, “After compromise in the Hon’ble Court I look no account of the case under Section 498A of IPC pending in the Magistrate’s Court at Howrah” This complaint was filed in 6th December, 1991 whereas the wife had lodged a diary on 4th of October, 1991 (Ext. 17, PB-11, p. 37), wherein she informed that she had no complaint against anybody and she would not start any case against anybody. In her written statement, she admitted that the proceeding under Section 498A IPC was still pending for disposal (PB-I, p. 53) and that the said proceeding was initiated when the acts of cruelty was perpetrated against her (PB-I, p. 55) and denied that the allegations made in the application under Section 498A were false and the case was filed falsely; but, however, she admitted that the matter was pending before the Court (PB-I, P. 59).

17. Making of false allegations are apparent on the face of the record that she wanted to say that the allegations made in the application were designed by her lawyer in one breath and then says that all the allegations made in the said application are true and correct; but these allegations are yet to be proved. No evidence has been led to prove any of these allegations by the wife.

18. Thus, it appears to be a false allegation in relation to the character of the husband imputing that the husband had been torturing the wife and that the husband used to have illicit connection with other women. These disgusting and disparaging allegations are sufficient to constitute cruelty when not proved and this cruelty was maintained even till the date when the wife had given her evidence in the proceedings. She kept the proceedings pending and stood by her submissions made therein. She had never resiled from the allegation made against the husband in Exhibit 10 filed on 16th December, 1991. Thus, the cruelty emanating from the materials, as discussed above, does exist and is apparent from the record itself, which we omitted to consider in the earlier judgment. Admittedly, the allegations made therein are false because of the reason that she had never attempted to prove the same apart from the fact that in the said application, she had alleged that this torture and the illicit relation was continuing for long namely immediately after her marriage, ie: on 17th of June, 1982 in which one daughter and one son were born on 24th of July, 1983 and 20th February, 1988 respectively. Whereas a few days before 16th December, 1991, the date when the application under Section 498A IPC was filed, the wife lodged a diary on 4th of October, 1991 being Ext. 17 (PB-II, p. 37) wherein she did not whisper anything about those allegations, on the other hand, she said she had no complaint against anybody and she would not start any case against anybody.

19. Keeping of an application under Section 498A IPC pending against a person is like a Democles’s sword. The person would remain in constant fear of its being fallen on his head any time. This itself is a cruelty continuous.

20. There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) on 3rd of December, 1991 being Ext. 13 (PB-II, p. 26) wherefrom it appears that the wife used to leave the matrimonial home taking away the children with her even at the cost of the studies of the children and the husband had to persuade her to bring the children back. However, the husband ultimately got the daughter admitted in Mousuri (PB-I, p. 107) so as to ensure her uninterrupted education and that the husband had to rescue the children so as to continue their studies through proceedings under Section 97 Cr. PC. The taking away of the children and interference with their studies, an agony for a father, desiring his children to be educated properly, would also amount to cruelty. At page 139 (PB-I) she stated, “It is a fact that after my marriage and upto this day my husband assault me but I cannot remember the number of times. I did not state to my lawyer prior to preparation of the written statement that my husband had assaulted me. I lodged no diary in P.S. about the assault. I lodged a diary in P.S. while I left my matrimonial house with my children. I made no allegation against my husband and the members of his family in the said diary.” The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate, 2003(6) SCC 334 (supra), and followed and elaborately discussed in Kakali Das v. Ashish Kumar Das, AIR 2004 Cal 176 : 2004 (3) CHN 516.

21. Even if it is assumed that the cruelty of the wife arising out of the initiation of the proceedings under Section 498A IPC and the allegation made therein was condoned by reason of the alleged cohabitation either before or after the institution of the suit, even then the failure to withdraw the proceedings despite agreed to by the wife, the survival of the proceedings, and her assertion in the written statement that the said proceeding is still pending disposal (PB-I, p.59), the assertion of the wife in her deposition in cross-examination that the said proceedings against the husband is now alive (PB-I, p. 141) and her deposition asserting that the statements made in the application under Section 498A IPC (Ext. 10) are all correct and true (PB-I. p. 138), has the effect of revival, continuance and survival of the cruelty.

22. It may be noted that even before this Court an application was made by the father for ensuring the studies of the son when the daughter had been adequately educated keeping her outside in Boarding School and the daughter lives with the father and that ultimately the wife was persuaded to allow the son to be admitted in a Boarding School outside the State of West Bengal. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.

23. It is alleged that by reason of cohabitation the husband had condoned the act of cruelty on the part of the wife and all other grounds on which divorce was sought for. In our earlier judgment, we had held that in the absence of cross-examination on the question of cohabitation, the wife’s allegations were to be believed. But, now it is pointed out that in his deposition the husband had asserted (PB-I, p. 91) that he had no relationship with the wife since 1990 and that he used to live in a separate room. He reiterated that he lived in a separate room in his examination-in-chief (PB-I, p. 95) and that he did not maintain any relation with the wife since 1990 (PB-I, p. 96) and he did not condone the cruel behaviour of the wife (PB-I, p. 97). This he repeated at page 101 and maintained stood by in his cross-examination (PB-I, pp. 114, 118 & 121). On this question of cohabitation, the wife was cross-examined where she had stated (PB-I, p. 134) that ‘It is not a fact that I had no sexual relation with my husband since 1990.” She admitted that she left the matrimonial home on 4th of October, 1991 by saying (PB-I, p. 134) “It is correct to say that from 4.10.91,1 resided with my sister at Bally with my one son and one daughter.” and said that (PB-I, p. 136)” I have been living in my matrimonial house since 1.10.92″ She was also cross-examined on the question of co-habitation when she answered (PB-I, p. 137) that “It is a fact that my last cohabitation with husband was held on 1st week of January, 1995. At page 140 (PB-I), she stated in her cross-examination that “my husband does not reside in the house where I reside. Then says, I do not know as to where he resides. Not a fact that my husband did not live separately at any point of time in the premises where I reside in the same room.” From the evidence of the OPW-1, the wife, it appears that she blew hot and cold when she says in her cross-examination at page 142 (PB-I) that ‘Not a fact that I suspected and used to tell that he had illicit connection with another lady” and that her lawyer drafted the petition and designed the same according to his estimation under Section 498A (PB-I, p. 141) and that she had no allegation against her husband on 4th of October, 1991 recorded in the diary (PB-I, p. 139) while saying that the statements made in the application under Section 498A were all correct and true. She contradicts herself to loose the credibility of her evidence. The suit was filed on 29th of November, 1994, whereas the last cohabitation was alleged in January 1995, which is wholly improbable.

24. The totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. The credibility of the evidence does not depend on the absence of cross-examination, but on the credibility of the witness himself/ herself and the totality of the evidence on record. It was so held in the decisions in Juwarsingh, 1980 (Supp) SCC 417 (supra) and P. Ram Reddy, (supra). In the present case, however, there were some cross-examination and the wife admitted of not living in the same room and alleged cohabitation after fourth months of filing of the suit, it is the probability of the evidence, which has to be considered not the absence of cross-examination. Even absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. The truth of the evidence is to be tested on the basis of the probabilities and reliability and the credence of the respective witnesses, particularly, when two versions have been brought on record by the husband and the wife (PW-1 and the OPW-1). In the present case, the evidence of the wife seems to be against all probabilities. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

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At the same time, we have found that the parties are not residing together and had been living apart and the husband had left the matrimonial home. Even in course of hearing of the review application, the Court had attempted to resolve the dispute and requested the learned Counsel to bring about a settlement and ultimately to present the respective parties before the Court. The Court had attempted to settle the matter but the wife did not agree to reconcile though the husband expressed his willingness. The Court, found that the parties are living separately and are unable to resolve their dispute and that the marriage has broken down irretrievably and ultimately a settlement only with regard to education of the son and the maintenance and residence of the wife was arrived at by consent of the parties without any success in bridging the relation between them.

26. Thus, it appears that the ground of cruelty exists and the marriage between the parties has irretrievably broken and all our attempts to restore the same had failed. As such it is a case fit for passing a decree of divorce even on the ground of irretrievably breaking down the matrimony on the principle we had enunciated in the decision in Nityananda Karmi v. Kum Kum Karmi, 2003 (1) ICC 249 : 2003(1) WBLR (Cal) 348 : 2003(4) ILD 73 (Cal.): 2003 (2) CHN 121 (DB).

27. Since by consent of parties the main appeal of which the review is allowed was argued at length between the parties and have since re-heard, in view of the fact that the ground of cruelty having been proved as discussed above and the marriage has irretrievably been broken and all our attempts to bridge the relation having failed by reason of the disagreement between the parties, we hereby allow the appeal in FA No. 12 of 2001 and grant a decree of divorce on the ground of cruelty and the Matrimonial Suit No. 318 of 1994 of the Court of the learned Additional District Judge, 4th Court, Howrah stands decreed. The marriage between the parties be annulled. Let a decree of divorce be granted accordingly.

CAN 1120 of 2005. CAN 3079 of 2005.

28. The question of permanent alimony is hereby settled in terms of our order dated 3rd March, 2005 only with the modification that the husband shall arrange a proper flat in the locality of the matrimonial home sufficient for the residence of the wife since the husband submits that he does not have any share in the ancestral house. In addition to the maintenance, husband shall purchase a self-contained flat (at least with one bedroom with attached bath, one guestroom, drawing, dinning, kitchen, and common bath) in the locality sufficient to the requirement and status of the wife as close as possible to the ancestral home and shall fully furnish and make over the same to the wife within 6 (six) months from date and the wife shall be entitled to continue to reside in that flat till her life without any interruption from her husband or anyone else and she would continue to receive the permanent alimony in terms of the order dated 3rd of March, 2005 so long she survives in the same manner as provided therein.

Order:

29. In the result, the appeal stands allowed in terms of above. CAN 1120 of 2005 and CAN 3079 of 2005 are also disposed of accordingly. The judgment and decree appealed against is hereby set aside. The marriage between the parties stands annulled by a decree of divorce. Let there be a decree of divorce accordingly. The wife shall be entitled to residence and maintenance in terms of order dated 3rd March, 2005 subject to the modification as indicated in paragraph 28 above. The education of the son be governed in terms of the order dated 3rd March, 2005. The Matrimonial Suit No. 318 of 1994 of the 4th Court of Additional District Judge, Howrah is thus decreed.

30. There will, however, be no order as to costs.

31. Liberty to mention.

32. Urgent xerox certified copy of this judgment, if applied for, the same be supplied within seven days on usual terms.

 

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