Back
2011 Supreme(Cal) 45
HIGH COURT OF CALCUTTA
KANCHAN CHAKRABORTY, J.
Rahima Bibi - Appellant
Versus
Abdul Odud - Respondent
C.R.R. No. 517 of 2008
Decided on : Jan 13, 2011
Rabi Sankar Chattopadhyay, Uday Sankar Chattopadhyay, Swapan Kumar Mallick
A wife who withdraws maintenance proceedings on her husband's promise to remarry and gift her land, but who suffers mental, social, and monetary loss due to the husband's deceitful act of remarrying her and then giving her Talak and transferring the gifted land to his second wife, is entitled to compensation under Section 357(3) of the Code of Criminal Procedure.
Headnote:
CRIMINAL LAW - MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE - SECTION 357(3) OF THE CODE OF CRIMINAL PROCEDURE - COMPENSATION - WIFE WITHDRAWING MAINTENANCE PROCEEDING ON HUSBAND'S PROMISE TO REMARRY AND GIFT LAND - HUSBAND REMARRYING BUT GIVING TALAK SHORTLY THEREAFTER AND TRANSFERRING GIFTED LAND TO SECOND WIFE - WIFE SUFFERING MENTAL, SOCIAL, AND MONETARY LOSS - COURT AWARDING COMPENSATION UNDER SECTION 357(3) OF THE CODE OF CRIMINAL PROCEDURE - APPELLATE COURT SETTING ASIDE COMPENSATION ORDER WITHOUT ASSIGNING REASONS - REVISION COURT SETTING ASIDE APPELLATE COURT ORDER AND RESTORING COMPENSATION ORDER - WIFE ENTITLED TO COMPENSATION FOR MENTAL, SOCIAL, AND MONETARY LOSS SUFFERED DUE TO HUSBAND'S DECEITFUL ACT.
Fact of the Case:
The petitioner, Rahima Bibi, initiated a criminal action against her husband, Abdul Odud, under Section 125 of the Code of Criminal Procedure for maintenance in 1984. After the husband gave her Talak, the petitioner was awarded maintenance. The husband proposed to remarry the petitioner and gift her some landed properties to secure her future maintenance if she withdrew the proceedings. A compromise petition was filed, and the maintenance proceeding was withdrawn. The husband remarried the petitioner and executed a Deed of Gift in respect of 16 1/2 decimals of land on 5th August, 1991. However, the husband had already transferred the said land to his second wife on 29.7.1991. The petitioner filed a petition of complaint under Sections 417/420 of the Indian Penal Code against the husband, which was registered as C.R. Case No. 58-A of 1992. The husband was convicted under Section 417 of the Indian Penal Code and sentenced to six months' rigorous imprisonment and directed to pay a compensation of Rs. 20,000/- to the petitioner under Section 357(3) of the Code of Criminal Procedure. The husband challenged the conviction and sentence in appeal, which was dismissed. However, the appellate court set aside the order of compensation. The petitioner challenged the legality and validity of the appellate court's order.
Finding of the Court:
The revision court found that the appellate court had erred in setting aside the order of compensation without assigning any reasons. The court held that the petitioner had suffered mental, social, and monetary loss due to the husband's deceitful act and was entitled to compensation under Section 357(3) of the Code of Criminal Procedure.
Issues: Whether the appellate court erred in setting aside the order of compensation without assigning any reasons.
Ratio Decidendi: The revision court relied on the decision of the Hon'ble Apex Court in Manish Jalan v. State of Kamataka, (2008)3 SCC (Cr) 456 : (2008)2 C Cr LR (SC) 631, which held that if a case is a fit one in which compensation deserves to be awarded, it is necessary for the Court to award compensation and the quantum of compensation is to be determined by taking into consideration the nature of crime, injury suffered and the capacity of the convict to pay compensation, etc.
Final Decision: The revision court set aside the appellate court's order and restored the trial court's order of compensation of Rs. 20,000/- to the petitioner.
1. MR. Uday Shankar Chattopadhyay, learned Advocate appearing on behalf of the petitioner, files affidavit of service together with copy of notice sought to be served upon the State of West Bengal as well as Abdul Odud despatched by registered post on 30.7.2008. Let the same be kept with the record.
2. HEARD Mr. Chattopadhyay, learned Advocate for the petitioner and Mr. Mallick, learned Advocate appearing for the State. The petitioner herein, Rahima Bibi, initiated a criminal action long back in the year 1984 under Section 125 of the Code of Criminal Procedure against the O.P. No. 1, Abdul Odud, which was registered as M.R. Case No. 147 of 1984. Thereafter, the O.P. No. 1 given her Talak. Ultimately, the award, granted in favour of the present petitioner, was put in execution as the O.P. No. 1, as her husband, could not comply with the direction of Court to pay maintenance. A distress warrant was issued against him, Chased by the distress warrant, the O.P. No. 1 proposed the petitioner that he would remarry her and allow her to stay with him as his wife in case she withdraws the proceedings. He also proposed that he would gift some landed properties to the petitioner in order to secure her future maintenance. A compromise petition was filed to that effect and, as a consequence, that maintenance proceeding was withdrawn. Before the proceeding was withdrawn on compromise, the O.P. No, 1, however, remarried the petitioner and executed a Deed of Gift in respect of 16 1/2 decimals of land on 5th August, 1991. The moment the proceeding was withdrawn on compromise, the O.P. No. 1 had gone to his second wife leaving the petitioner alone and informed her in writing that he has given her Talak. In order to maintain herself, the petitioner had gone to the landed property, which was gifted to her by the O.P. No. 1 on 5th August, 1991, but found that the said land was already transferred by the O.P. No. 1 on 29.7.1991 in favour of his second wife.
3. THE petitioner felt dejected and defrauded. She relying on the action taken by the O.P. No. 1, withdrew the maintenance proceeding, which was in her favour and acknowledged the gift treating the same to be a genuine one. She did not find place in her matrimonial house. She did not get any maintenance, whatsoever, from the O.P. No. 1. She, finding no alternative, knocked at the doors of the Court and filed a petition of complaint under Sections 417/420 of the Indian Penal Code against the O.P. No. 1, which was registered as C.R. Case No. 58-A of 1992 in the Court of learned Sub-Divisional Judicial Magistrate, Lalbagh. THE case was, ultimately, tried by the learned Judicial Magistrate, 1st Class, Additional Court, Lalbagh, Murshidabad. Upon considering the evidence recorded in course of trial, the learned Magistrate found the O.P. No. 1 guilty of offence under Section 417 of the Indian Penal Code and convicted him. He sentenced him to suffer rigorous imprisonment for six months and directed him to pay a compensation of Rs. 20,000/- to the present petitioner under Section 357(3) of the Code of Criminal Procedure.
4. THE O.P. No. 1 challenged the judgment passed by the learned Magistrate in appeal, which was registered as Criminal Appeal No. 5/03/4/ 03. THE appeal was heard by the learned Additional Sessions Judge, 1st Fast Track Court, Lalbagh and by a judgment dated 28.9.2007 found the order of conviction and sentence passed by the learned trial Court justified. He affirmed that order but, set aside the order in respect of payment of compensation of Rs. 20,000/- by the convict/petitioner to the complainant. The petitioner herein has challenged the legality and validity and propriety of that portion of the order passed in the Criminal Appeal No. 5/03/4/03 on 28.9.2007 by the learned Assistant Sessions Judge, 1st Fast Track Court, Lalbagh on the following grounds :
a) The learned Appellate Court erred in setting aside the order of compensation passed by the learned trial Court specially wh
