High Court Of Calcutta
Malay Kumar Basu
ASIT BARAN MUKHERJEE - Appellant
Versus
FULESWARI MUKHERJEE - Respondent
C. R. R. 447 Of 2002
Decided On : 09/05/2002
MAINTENANCE - SECTION 125 CR. P. C. - 125 - APPLICATION UNDER SECTION 125 OF CR. P. C. - WIFE ENTITLED TO MAINTENANCE - HUSBAND NEGLECTED TO MAINTAIN HER - HUSBAND'S INCOME - EVIDENCE - WIFE'S EVIDENCE - HUSBAND'S FAILURE TO ADDUCE EVIDENCE - COURT'S INFERENCE - MAINTENANCE AWARDED.
Fact of the Case:
Wife filed an application under Section 125 of Cr. P. C. claiming maintenance from her husband on the ground that he neglected to maintain her and she, having no independent source of income, was living with hardship along with a child at her father's house. The husband did not adduce any evidence to support his claim that he did not neglect to maintain his wife.
Finding of the Court:
The courts below found that the wife was entitled to maintenance as the husband neglected to maintain her. The courts also found that the husband had a business in cycle garage and earned about Rs. 5000/- per month from it, in addition to the landed properties he possessed.
Issues: 1. Whether the husband neglected to maintain his wife? 2. Whether the wife was entitled to maintenance? 3. Whether the courts below erred in awarding maintenance to the wife?
Ratio Decidendi: 1. The husband's failure to take back his wife after she was driven away from his house in the eighth month of pregnancy, and his failure to provide any evidence to show that he was willing to take her back, amounted to neglect on his part. 2. The wife was entitled to maintenance as she had no independent source of income and was living with hardship along with a child at her father's house. 3. The courts below did not err in awarding maintenance to the wife as there was sufficient evidence to support their findings.
Final Decision: The revisional application was dismissed and the impugned order was affirmed.
( 1 ) THIS revisional application is directed against the order dated 27th November, 2001 passed by the learned Additional Sessions Judge, 2nd Court, Alipore in Criminal Motion No. 267 of 2001 of his court. By this order the learned Additional Sessions Judge affirmed the order under revision passed by the learned Judicial Magistrate, 2nd Court, Diamond Harbour in Misc. Case No. 225 of 1992 under Section 125 of Cr. P. C. The wife, Smt. Fuleswari Mukherjee filed that application under Section 125 of Cr. P. C. claiming maintenance from the husband on the ground that the latter neglected to maintain her and she having no independent source of income was passing her days with great hardship along with a child at the house of her father.
( 2 ) DURING trial of the case the petitioner-wife examined herself and her witnesses but the opposite party-husband did not adduce any evidence, although at the time of the argument he was present and advanced his argument. After considering the materials on record and hearing the arguments of both sides, the learned Magistrate allowed the petition of the wife and awarded, a sum of Rs. 1000/- in all (Rs. 500/- for the wife herself and Rs. 500/- for the child) payable by the husband every month by way of maintenance.
( 3 ) BEING aggrieved by that order the husband, Sri Asit Baran Mukherjee, preferred a revisional application before the Court of Sessions and the learned Additional Sessions Judge, 2nd Court, Alipore passed the said impugned order upholding the order under challenge of the learned Magistrate and also affirming the amount of maintenance which he awarded.
( 4 ) BEING again aggrieved thereby, the husband has preferred the present application before this court under Article 227 of the Constitution of India challenging the said order as erroneous, improper and unjust.
( 5 ) AT the very outest, the learned advocate appearing on behalf of the opposite party-wife before me has challenged the legal maintainability of this revisional application on the ground that the finding of fact by both the courts below being concurrent, there cannot be any scope for the petitioner to prefer any such second revisional application challenging the said concurrent findings of fact. This contention of Mr. Bhattacharjee can hardly be furnished aside. Under Section 397 (2) of Cr. P. C. a second revision is not permissible particularly when both the courts below have pronounced the same findings of fact and the aggrieved petitioner has come to this court for the second time. A petition under Article 227 of the Constitution of India has a limited compass. Article 227 of the Constitution should not be taken as a universal panacea to be applied in cases where the revisional application under Section 397 Cr. P. C. is not tenable under the law. The conditions for applying this particular provision of the Constitution touching the power of general superintendence of this court over the performance of the inferior courts are settled by the Apex Court in a large variety of cases and the principles which have been enunciated are that the provisions of this Article can be attracted where there are errors apparent on the face of the record or where there are violation of principles of natural justice or there are errors which are so gross and flagrant that intervention of the court is called for or the impugned order suffers from perversity or the order is founded on a misreading of the evidence or on the basis of no material at all. In these limited number of situations the provisions of Article 227 of the Constitution of India can be attracted and it cannot be used as a substitute for Section 397 or Section 482 of the Criminal Procedure Code.
( 6 ) IN the present case, as it will be clear enough, there is no such error apparent, on the face of the record or perversity in the matter of drawing of the conclusions by the court below or it is also not the case that the findings of the courts below we
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