Smt.Debjani Das vs Sri Shyamapada Jana @ Shyamapada ...
2022 Latest Caselaw 5799 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                             CRR 154 of 2022

                             Smt.Debjani Das
                                    -Vs-
           Sri Shyamapada Jana @ Shyamapada Jana & Anr.

      For the Petitioner (in person):
                               Mrs. Debjani Das.

      For the Respondent:      Ms. Subhasree Patel, adv.,

Ms. Salini Das, Adv.

Heard on: 03 August, 2022.

Judgment on: 23 August, 2022.

BIBEK CHAUDHURI, J. : -

1. Applicant of Misc Case No.426 of 2009 being a proceeding under

Section 125 of the Code of Criminal Procedure has challenged the legality,

validity and propriety of an order dated 27th December, 2021 passed by

the learned Judicial Magistrate, 5th Court at Alipore directing the opposite

party/husband to pay maintenance allowance at the rate of Rs.4500/-

per month to the applicant from the date of the order on the ground that

the learned Magistrate while fixing the quantum of maintenance failed to

consider that monthly income of the husband of the applicant/opposite

party herein. She also failed to appreciate that the applicant/petitioner

was granted interim maintenance at the rate of Rs.10,000/- per month by

this Court and final order of maintenance cannot be less than the interim

order of maintenance.

2. Petitioner conducted the hearing of the revision petition in person.

The opposite party/husband has duly represented by his learned

Advocate.

3. I have heard the petitioner and the learned Advocate for the

opposite party at length. It is pertinent to mention here that at the time of

hearing the petitioner has submitted a written note in vernacular, the

said written note is kept with the record.

4. Indisputably, the petitioner is the legally married wife of the

opposite party No.1. However, marital tie between the parties is severed

by a decree of divorce passed ex-parte dated 25th June, 2007. In the year

2009, the petitioner filed an application under Section 125 of the Code of

Criminal Procedure which resulted in registration of Misc Case No.426 of

2009. In the said proceeding upon an application of interim maintenance,

trial court directed the opposite party No.1 to pay maintenance allowance

at the rate of Rs.10,000/- per month during the pendency of the said

case. It is submitted by the petitioner that the opposite party No.1 deals

with the business of plying commercial vehicles. He is owner of nine

numbers of cabs having commercial registration number. He also deals

with the business of cable networking. He earns Rs. 1 lakh approximately

per month. It is further submitted by the petitioner that the learned

Magistrate while disposing of the abovementioned Criminal Misc Case did

not even considered the income of the opposite party No.1 and basic need

of the petitioner. It is also submitted by the petitioner that the learned

Magistrate failed to appreciate the evidence on record, present market

price of essential commodities and daily need of the petitioner for her bear

maintenance.

5. Mrs. Subhasree Patel, learned Advocate for the opposite party No.1,

on the other hand, submits that the petitioner is a handicapped person

having 60% locomotive disability. In course of argument it is admitted by

the learned Advocate for the opposite party No.1 that he is the owner of

nine numbers of automobile cabs but all the said cabs are more than 15

years old and those are liable be to be scraped. The said motor cars are

not engaged commercially at present and the opposite party has no

earning income from his transport business. According to the learned

Advocate for the opposite party No.1, the opposite party somehow earns

Rs.30,000/- per month. Therefore, she supported quantum of

maintenance granted by the learned Magistrate vide order dated 27th

December, 2021.

6. With the supplementary affidavit filed by the petitioner, she has

annexed the Photostat copies of the evidence adduced by her, as PW1 and

her father as PW2 and the opposite party No.1. In her cross-examination

in chief, the petitioner stated on oath that on the date of deposition, the

opposite party No.1 used to earn Rs.1,50,000/- per month. Therefore she

prayed for maintenance allowance at the rate of Rs.50,000/- per month. I

have carefully gone through the cross-examination of PW1. During cross-

examination the statement of PW1 on oath to the fact that her husband

used to earn Rs.1,50,000/- per month on the date of her evidence was not

even challenged.

7. The father of the petitioner, namely Dipak Das deposed in the trial

court as PW2. In his cross-examination it was suggested that the opposite

party does not earns Rs.1,50,000/- per month which he denied. In the

trial court the opposite party took a plea that the petitioner earns

Rs.10,000/- per month by selling jams and jelly. But the learned

Magistrate held on appreciation of evidence that the opposite party failed

to prove such claim of income by the petitioner by adducing satisfactory

evidence and producing document in support of his claim. The learned

Magistrate also found that the opposite party failed to produce any

document to prove that he became totally incapable of performing any

kind of work.

8. However, the learned Magistrate failed to consider the evidence of

the petitioner with regard to the monthly income of the opposite party.

Without arriving at such specific conclusion with regard to the monthly

income of the opposite party, I am constrained to hold that the learned

Magistrate acted illegally and material irregularities in fixing quantum of

maintenance at the rate of Rs.4,500/- per month in favour of the

petitioner.

9. Therefore, the impugned order with regard to the quantum of

maintenance payable by the opposite party No.1 to the petitioner is liable

to be set aside. Accordingly the instant revision is allowed. The impugned

order dated 27th December, 2021 is set aside.

10. The learned Magistrate is directed to fix quantum of maintenance

payable by the opposite party No.1 to the petitioner upon due

consideration of the evidence adduced by the parties with regard to

monthly income of the opposite party and basic need of the petitioner vis-

a-vis., present market price of essential commodities and minimum

requirement of the petitioner to lead a dignified life in society.

11. The learned Magistrate is further directed to disposed of the Misc

Case No.426 of 2009 within two months from the date of communication

of this order.

12. In the mean time the opposite party shall pay interim maintenance

to the petitioner at the rate of Rs.10,000/- per month.

13. With the above order the instant criminal revision is disposed of.

(Bibek Chaudhuri, J.)