Back
1985 Supreme(Cal) 268
High Court Of Calcutta
SANKARI PRASAD DAS GHOSH
SUKLA MUKHERJEE - Appellant
Versus
AMBARENDU NARAYAN MUKHERJEE - Respondent
Criminal Revision 796 Of 1985
Decided On : 07/05/1985
ALOKE NANDA BHOSE, CHAITANYA, DHRUBA JYOTI GHOSH, MUKHERJEE, PRASANT BANERJI, PROMOD RANJAN ROY, TANMOY GOSWAMI
A wife's right to maintenance under Section 125, Cr.P.C. is not barred even if she refuses to live with her husband due to cruelty and torture inflicted by him.
Headnote:
MAINTENANCE - HUSBAND'S OBLIGATION - CRUELTY - SECTION 125(4), CR.P.C. - INTERPRETATION - WIFE'S RIGHT TO MAINTENANCE NOT BARRED DESPITE REFUSAL TO LIVE WITH HUSBAND DUE TO CRUELTY.
Fact of the Case:
The wife filed an application under Section 125, Cr.P.C. for maintenance from her husband, alleging physical and mental torture and cruelty. The husband denied the allegations and claimed that the wife refused to live with him without sufficient reason. The Magistrate granted maintenance for the daughters but not for the wife, holding that there was no just or reasonable ground for her to live separately from her husband.
Finding of the Court:
The High Court held that the Magistrate erred in not granting maintenance to the wife. The Court found that the wife had proved cruelty and torture by the husband, which justified her refusal to live with him. The Court also held that the husband's neglect to maintain his wife was evident from his failure to send regular money orders or visit her after she left his house.
Issues: 1. Whether the wife was entitled to maintenance from her husband despite her refusal to live with him. 2. Whether the husband's conduct amounted to cruelty and torture, justifying the wife's refusal to live with him.
Ratio Decidendi: The Court held that the wife's refusal to live with her husband was justified due to the cruelty and torture inflicted by him. The Court interpreted Section 125(4), Cr.P.C. to mean that a wife's right to maintenance is not barred even if she refuses to live with her husband due to cruelty. The Court emphasized that cruelty need not be confined to physical cruelty and that the wife's apprehension of harm or injury from living with her husband is sufficient to constitute cruelty.
Final Decision: The High Court allowed the revision application and set aside the Magistrate's order rejecting the wife's prayer for maintenance. The case was remanded to the Magistrate for fixation of the quantum of maintenance to be paid by the husband.
( 1 ) IN this application under Ss. 397, 401 and 482, Cr. P. C. , heard as contested application, the petitioner has prayed for setting aside the judgment delivered by the learned Judicial Magistrate, 1st Class, 6th Court, Sealdah, in Case No. M-7 of 1984, so far as her prayer for getting maintenance from her husband is concerned.
( 2 ) THE petitioner-wife filed an application against her husband, the opposite party No. 1, under S. 125, Cr. P. C. for her maintenance and maintenance of her two daughters. Her case was that she was married with the opposite party No. 1 on 15-4-1975 according to Hindu rites. With a short period of the marital life, the husband began to torture the petitioner both physically and mentally. The husband demanded money through the petitioner from her father. After four months of the marriage, the husband drove out the petitioner from his house without any cause and asked her not to come back. At the intervention of the petitioner's father, the matter was settled and the petitioner was taken to the house of her husband. The husband assaulted the petitioner mercilessly very often and even asked her to commit suicide. In Feb. 1980, the opposite party No. 1 drove away again the petitioner from his house after assaulting her. The petitioner took shelter in the house of her father with her children. At the intervention of the brother and father of the petitioner, the matter was again settled mutually and the petitioner was taken to her husband's house. Two daughters and a son were born out of the wedlock of the petitioner with the opposite party No. 1. The husband kept the son with him. On 23-12-1983, the petitioner along with her two daughters went to her father's house. It was decided that the opposite party No. 1 would go to her father's house on 25-12-1983. Accordingly, on 25-12-1983, the opposite party No. 1 went to the house of the petitioner's father and took lunch there. At about 2 p. m. on 25-12-1983, when the husband-opposite party No. 1 was about to leave the house of the petitioner's father, he suddenly took his shoe and assaulted the petitioner and asked her not to return to his house. All attempts for mutual settlements failed thereafter. As such, the petitioner filed the petition under S. 125 Cr. P. C. , claiming maintenance at the rate of Rs. 400/- for herself and at the rate of Rs. 400/- for her two daughters per month on alleging that the opposite party No. 1 was an Assistant Director of the Bureau of Applied Economics and Statistics, Government of West Bengal, and drew salary of Rs. 1,600/- per month.
( 3 ) THE case was contested by the opposite party No. 1 by filing a written objection wherein all the material allegations by the petitioner were denied. It was alleged that the opposite party No. 1 went to bring back the petitioner to his house and that the father and the elder brother of the petitioner instigated the petitioner not to come with him. It was also alleged that the opposite party No. 1 remitted money to the petitioner by money order for her expenses and that the money order was refused.
( 4 ) THREE witnesses were examined by the petitioner, including herself. The petitioner examined herself as P. W. 1. Her brother, Aloke Banerjee, was examined as P. W. 2. P. W. 3 was a constable, who was examined to prove a G. D. entry, Ext. 4, by the petitioner at Manicktala P. S. at 2-20 p. m. on 26-12-1983, after the alleged occurrence of assault on the petitioner by the opposite party No. 1 at about 2-30 p. m. on 25-12-1983. The opposite party No. 1 did not examine himself. He did not examine any witness. A bunch of letters were marked exhibits in the case. On a scrutiny of the evidences of the P. Ws. and the documentary evidences, the learned Magistrate passed an order for maintenance for each of the two daughters of the petitioner at the rate of Rs. 150/- per month. The learned Magistrate did not pass any order for maintenance of the petitioner on holding,
