IMPORTANT POINT
Maintenance—Annulment of marriage ipso facto cannot be a ground for setting aside order of maintenance.

JUDGMENT

Tirthankar Ghosh, J.—The present revisional application has been preferred by the petitioner/wife challenging the judgment and order dated 10.01.2019 passed by the learned Chief Judicial Magistrate, North 24 Parganas in Misc. Case No. 143 of 2016 arising out of M. Case No. 48 of 2009 under Section 127 of the Code of Criminal Procedure. Wherein the learned Chief Judicial Magistrate, North 24 Parganas, was pleased to hold that the petitioner is not entitled to get any maintenance and as such allowed the application under Section 127 of the Code of Criminal Procedure.

2. The background of the case relates to an application under Section 125 of the Code of Criminal Procedure preferred at the instance of the wife/petitioner herein being M. Case No. 48 of 2009 which was rejected after contested hearing by an order dated 23.12.2010 passed by the learned Chief Judicial Magistrate, North 24 Parganas. The petitioner thereafter preferred a revisional application before the Hon’ble High Court at Calcutta being CRR 542 of 2011, however, the same was not interfered by the Hon’ble High Court by its order dated 27.09.2013 and as such the petitioner preferred an appeal before the Hon’ble Supreme Court against the said order by way of Special Leave to Appeal being Criminal Appeal No(s).161-162 of 2015 (@ SLP (Crl.) No.8083-8084/2014). The Hon’ble Supreme Court by its judgment and order dated January 19, 2015 was pleased to award maintenance of Rs.7,500/- per month from the date of filing of the application under Section 125 of the Code of Criminal Procedure. By the same order the Hon’ble Apex Court was pleased to direct payment of arrears of maintenance to be paid in equal quarterly instalments within a period of one year.

3. The other part of the matrimonial dispute relates to Matrimonial Suit No.64 of 2008 wherein by a judgment dated 18th August, 2018 the learned Additional District Judge, Fast Track Court No.3, Barasat, North 24 Parganas was pleased to order as follows:—

“The marriage in between Sima Ghosh and Ashim Bose solemnised on 12.06.2008 be and the same is annulled from this date of the judgment.”

4. It has been observed by the learned Additional District Judge, Fast Track Court No.3, Barasat, North 24 Parganas that the suit was filed for decree of nullity and/or in the alternative decree of divorce on the ground of cruelty. The facts stated therein reflected that initially the husband instituted a suit praying for decree for restitution of conjugal rights in terms of Section 9 of the Hindu Marriage Act and the wife after appearance filed written statement along with counter claim. Subsequently, husband withdrew his prayer for restitution of conjugal rights and the counter claim was accepted as cross-suit and the same was proceeded. The Learned Civil Judge after relying upon the evidence set out the issues and while concluding observed as follows:—

“This court, therefore, come to the conclusion that even when a person is generally portent but is impotent with respect to his own spouse and is unable to consummate marriage, he may be presumed to be impotent for the purpose of Section 12(a) of the H.M. Act.

It further appears from the record that the parties to the suit are now residing separately since more than last 10 years and there is no further chance for their reconciliation. It is to be mentioned here that the record suggest that this court tried to reconcile the matter in between the parties on several occasions but in vain.

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From the aforesaid discussion it is abundantly clear that the marital tie in between the parties is now a dead subject. As such nobody will be prejudiced if the marriage in between the parties solemnised on 12.06.2008 be annulled in terms of Section 12 of the H.M. Act.”

5. After the Learned Additional District Judge, Fast Track No. 3, Barasat, North 24-Parganas passed the judgment in MAT Suit No. 64 of 2008 the husband took up such contention before the learned Chief Judicial