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High Court Of Calcutta
NRIPENDRA KUMAR BHATTACHARYYA
PRADIP KUMAR MUKHERJEE - Appellant
Versus
CHAITALI ALIAS MOLI MUKHERJEE - Respondent
Criminal Rev. 1035 Of 1994
Decided On : 05/16/1995
MAINTENANCE - SECTION 125 CRPC - SECTION 125(4) CRPC - MAINTENANCE AWARDED TO WIFE - HUSBAND'S CONTENTION THAT WIFE LEFT MATRIMONIAL HOME VOLUNTARILY - COURT HELD THAT HUSBAND FAILED TO MAINTAIN WIFE AND NEVER ATTEMPTED TO TAKE HER BACK - COURT ALSO HELD THAT HUSBAND'S MONTHLY INCOME WAS RS. 4500/- AS PER WIFE'S TESTIMONY AND HUSBAND DID NOT DENY IT IN HIS EVIDENCE - REVISION DISMISSED.
Fact of the Case:
Wife filed an application under Section 125 CrPC claiming maintenance from her husband. The husband contested the application, claiming that the wife had voluntarily left the matrimonial home and was not entitled to maintenance under Section 125(4) CrPC. The trial court awarded maintenance to the wife at the rate of Rs. 400/- per month from the date of filing the application. The husband challenged the order in revision.
Finding of the Court:
The revision court held that the trial court had come to a finding of fact that the husband had failed and neglected to maintain the wife and that he had never tried or attempted to take her back. The revision court also held that the husband's monthly income was Rs. 4500/- as per the wife's testimony and that the husband had not denied it in his evidence.
Issues: 1. Whether the wife was entitled to maintenance under Section 125 CrPC. 2. Whether the trial court had erred in awarding maintenance to the wife without ascertaining the husband's monthly income.
Ratio Decidendi: 1. The revision court held that the wife was entitled to maintenance under Section 125 CrPC as the husband had failed and neglected to maintain her and had never tried or attempted to take her back. 2. The revision court held that the trial court had not erred in awarding maintenance to the wife without ascertaining the husband's monthly income as the wife had testified that the husband's monthly income was Rs. 4500/- and the husband had not denied it in his evidence.
Final Decision: The revision court dismissed the husband's revision application and upheld the trial court's order awarding maintenance to the wife.
( 1 ) THE revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973, is taken up along with the application for vacating the interim order filed by the wife opposite party No. 1 on 10-3-1995, for hearing.
( 2 ) BY the instant revisional application, the petitioner has challenged the order and/or Judgement dated 3rd March, 1994, passed in Case No. M-135 of 1991, by the learned Judicial Magistrate, 1st Class, 5th Court, Barrackpore 24 Parganas (Sougth), whereby the learned Magistrate upon an application under Section 125 of the Code of Criminal Procedure by the wife opposite party No. 1 herein granted to the wife opposite patty No. 1 a monthly maintenance of Rs. 400/- to be paid month by month within the 2nd of every month and the petition was allowed and the husband (petitioner herein) was directed to pay the said sum at the rate since the date of filing the application. Against that order the husband (petitioner herein) moved this Court in revision and a single Bench of this Court by its order dated 17th May, 1994, while directing the petitioner for service of the revisional application upon the opposite party No. 1 herein, granted an ad interim stay of further proceeding on condition that the petitioner shall pay Rs. 200/- per month to the wife opposite party No. 1, month by month, and in default, the ad interim stay order which was granted for nine weeks from that date would stand vacated. From time to time that order was extended. The wife opposite party No. 1 in order to vacate or vary the interim order filed an application before this Court on 10th March, 1985. The application for vacating the interim order came up for hearing yesterday before this Court and Mr. Pramod Ranjan Ray, learned Senior Advocate appearing for the petitioner, argued the matter regarding vacating the interim order application but in doing so he also argued on the point of merit of the revisional application. In such circumstances, this Court by its order dated 15th May, 1995 directed that the revisional application and the application for vacating the interim order be heard today.
( 3 ) AS Mr. Ray yesterday made his submission regarding the main matter and also the vacating matter, Mr. Bimal Ranjan Talukdar, learned Advocate for the petitioner, appearing with Mr. Ray, made his submission today. Both the submissions made by Mr. Ray and Mr. Talukdar are recorded hereunder.
( 4 ) HEARD the submissions of Mr. Ray and Mr. Talukdar for the petitioner and the opposite party No. 1 herself who is appearing in person.
( 5 ) THE fact silhouetted behind the case is that admittedly the opposite party No. 1 is the legally married wife of the petitioner and she lived in her matrimonial home after her marriage which took place on 4th July, 1986. For sometime they lived together happily but thereafter torture started on her both physically and mentally and ultimately she was driven out of her matrimonial home on 9th May, 1989. Since then she was not taken back by the husband petitioner. No attempt was made to take her back and she was not maintained by the husband and neglected by him. She tried to go to her matrimonial home but she was refused entry. She has no income of her own and she is residing in the house of her father in a very pitiable condition and her husband who is the petitioner herein has a monthly income of Rs. 4500/ -. On this allegation she claimed maintenance from her husband at the rate of Rs. 500/- per month from the date of filing the application. Her application under Section 125 of the Code of Criminal Procedure was registered as Case No. M-135 of 1991. T. 454 of 1991 before the Court of the learned Judicial Magistrate, 5th Court, Barrackpore, 24-Parganas (South), already mentioned above. Both parties adduced evidence. The O. P. also submitted his show-cause and in consideration of the materials on record, i. e. the evidence as laid by both the parties, the peti
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