Back
2011 Supreme(Cal) 821
High Court of Judicature at Calcutta
KALIDAS MUKHERJEE
Khokan Chandra Dey
Versus
The State of West Bengal & Another
CRR NO. 767 OF 2011 With CRR NO. 686 OF 2011
Decided On : 22-06-2011
For the Petitioner:Mr. Rana Mukherjee, Ms. Rupa Bandopadhyay, Mr. Santosh Kumar Ray, Advocates.
For the Respondents:Ms. Sanghita Chatterjee, Advocate.
1. The court has the jurisdiction to grant maintenance w.e.f. the date of filing of the case under Section 125 Cr. P.C. 2. A warrant of arrest cannot be issued without assigning any reason.
Headnote:
MAINTENANCE - SECTION 125 CR. P.C. - SECTION 125 CR. P.C. - Maintenance awarded to wife and child under Section 125 Cr. P.C. - Husband's revision petition against the order of maintenance dismissed - Wife's revision petition against the order of issuance of warrant of arrest against the husband allowed.
Fact of the Case:
The husband filed a revision petition against the order of maintenance granted to his wife and child under Section 125 Cr. P.C. The wife filed a revision petition against the order of issuance of warrant of arrest against the husband for non-payment of maintenance.
Finding of the Court:
The court found that there was no ground to interfere with the findings of the learned Court below in granting maintenance at the aforesaid rate. The court also found that the order of issuance of warrant of arrest against the husband was not sustainable as the learned Magistrate did not assign any reason for issuing the warrant of arrest.
Issues: 1. Whether the order of maintenance granted to the wife and child under Section 125 Cr. P.C. was justified? 2. Whether the order of issuance of warrant of arrest against the husband was justified?
Ratio Decidendi: 1. The court held that the Learned Magistrate has the jurisdiction under the law to grant maintenance w.e.f. the date of filing of the case. In the instant case the Learned Magistrate has taken into consideration that the OP / husband did not pay any maintenance during the pendency of the case. 2. The court held that in absence of any reason for issuing warrant of arrest, the said order passed by the learned magistrate is not sustainable.
Final Decision: 1. The revision petition filed by the husband was dismissed. 2. The revision petition filed by the wife was allowed.
KALIDAS MUKHERJEE, J.
1. These are the two revisional applications arising out of the same proceeding granting maintenance at the rate of Rs.3000/- per month for the petitioner and Rs.2000/-per month for her minor daughter under Section 125 bearing Misc. Case No. 61/2005.
2. The petitioner/husband has filed the application bearing CRR 686/11 praying for setting aside the order of grating maintenance at the aforesaid rate passed by Learned Additional Chief Judicial Magistrate, Uluberia, Howrah in Misc. Case No. 61/2005 which was affirmed by the Learned Additional Sessions Judge, 5th Court, Howrah in Criminal Motion No. 216 of 2009.
3. The Opposite Party No.1 herein / wife instituted the proceeding under Section 125 of the Code of Criminal Procedure alleging that the petitioner/husband herein subjected her to physical and mental torture and refused to maintain her and her child.
4. The Learned Magistrate upon consideration of the evidence on record was pleased to grant maintenance at the aforesaid rate which was subsequently affirmed by the Learned Additional Sessions Judge.
5. The learned counsel appearing for the petitioner herein submits that the petitioner herein was all along willing to take back the O.P. and in fact he went to take her back. It is contended that the Opposite Party No.1 herein refused to come back to the matrimonial home.
6. The learned counsel appearing for the petitioner has referred to the evidence of the PWs and the OPWs.
7. The Learned Counsel appearing for the OP / Wife submits that because of the torture committed upon the OP herein she was compelled to leave the matrimonial home. It is submitted that the husband / petitioner herein filed the Matrimonial Suit under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights after the filing of the case under Section 125 Cr. P.C. It is further contended that the conduct of the husband was such that the OP/Wife was compelled to leave the Matrimonial home. In this connection the learned counsel for the O.P./wife has referred to and cited the decisions reported in (2011)1 C Cr LR (Cal) 395 [Smt. Rina Khatik vs. Sri Rajesh Khatik] : 2001 C Cr LR (Cal) 387 [Smt. Atashi Sen vs. Sri Jayanta Sen & Anr.]
8. Learned Counsel appearing for the petitioner / husband submits that the story of torture has not been corroborated by other PWs.
9. PW I has stated in her cross - examination that the OP came to her father’s house when her daughter was aged about 1 ½ months. But she has categorically stated that she left the house of her husband due to the torture committed upon her.
10. PW 2 has stated that the petitioner is residing in her father’s house as the OP drove her out from his house. He has further stated that the OP is a Government employee earning Rs.15,000/- - Rs.20,000/- per month; the petitioner has no means to maintain herself. He has denied the suggestion that the petitioner earns Rs.6000/- - Rs.7000/-per month as a private tutor.
11. PW I has stated that she has no income and, as such, she prayed for Rs.3000/- for herself and Rs.2000/- per month for her daughter. She has denied the suggestion that her brothers and mother created pressure upon OP / husband to reside in their house as "Ghar Jamai”. She has further stated that OP filed a Mat. Suit before the learned District Judge for restitution of conjugal rights.
12. OPW I / husband has stated that he is an employee of Alipore Mint and gets the salary of Rs.15,200/- per month.
13. The Learned Counsel for the petitioner submits that the Learned Magistrate granted maintenance from the date of filing of the application under Section 125 Cr. P.C. without assigning any reason.
14. It is clear that the Learned Magistrate has the jurisdiction under the law to grant maintenance w.e.f. the date of filing of the case. In the instant case the Learned Magistrate has taken into consideration that the OP / husband did not pay any maintenance during the pendency of the case.
15. Ha
