Abhishek Bhattacharyya vs Sananda ...
2022 Latest Caselaw 284 Cal

Citation : 2022 Latest Caselaw 284 Cal
Judgement Date : 3 February, 2022

Calcutta High Court (Appellete Side)

Abhishek Bhattacharyya vs Sananda ... on 3 February, 2022

03.02. 2022
 item No.31
 n.b.
 ct. no. 34


                         (via video conference)
                           CRR 3569 of 2019

                      Abhishek Bhattacharyya
                                Vs.
                 Sananda Bhattacharyya(Chatterjee)

                Mr. Sourav Chatterjee,
                Mr. Saikat Mondal,
                Ms. Subhasree Patel           .....for the Petitioner
                Mr. Ranadeb Sengupta,
                Mr. Sanchit Talukdar
                                 .....for the Opposite Party.


                The subject matter of the revisional application relates to

        the judgment and order dated 30.8.2019 passed by the learned

        Sessions Judge, Bankura in Criminal Revision No.42 of 2018.

                The said revisional application was preferred by the wife

        who was aggrieved by the final order passed in the proceeding

        under Section 125 of the Code of Criminal Procedure in connection

        with Misc. Case No.89/2016 (T.R. No.14 of 2016).      The learned

        Judicial Magistrate, 6th Court, Bankura in the main application

        under Section 125 of the Code of Criminal Procedure was pleased

        to award maintenance only to the minor daughter namely,

        Abhisikta Bhattacharyya, however, by the said order, the Learned

        Magistrate refused to grant any maintenance in respect of the wife

        namely, Sananda Bhattacharyya (Chatterjee). The Learned Sessions

        Judge, Bankura in the revisional application accepted the evidence

        on record and modified the order of the learned Magistrate to the
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extent that the wife, Sananda Bhattacharyya (Chatterjee) was

entitled to maintenance and directed to pay a sum of Rs.7,000/-

(Rupees Seven Thousand Only) per month from the date of the

order passed by the Learned Magistrate.

         Mr. Sourav Chatterjee, learned advocate appearing for

petitioner/husband before this Court has filed a supplementary

affidavit enclosing the evidence which was adduced before the

Learned Magistrate in course of trial.

         Mr. Sengupta, learned advocate appearing for the opposite

party submits that there are arrears so far as the wife is concerned.

According to him, the instruction which he has received is that

there is delay in payment of dues.

          Mr. Sourav Chatterjee, learned advocate appearing for

petitioner/husband disputes such contention.

         However, if an execution application is filed before the

Learned Magistrate relating to the dues the learned Magistrate will

dispose of the same in accordance with law at the earliest.

         I am dissatisfied with the maintenance proceedings as the

evidence has been recorded in this case by way of an affidavit

which is nowhere available in the procedural law. Such affidavits

can not be accepted as a substitute of evidence on dock.         The

contradicting materials which are appearing in evidence is because

of the fact that the lady was not on dock before the Learned

Magistrate and it was the lawyer's draft which was accepted as

gospel truth. In fact, the affidavit was not affirmed in a proper

manner. Such Notarial affidavits are not to be followed in respect
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of provisions under the Code of Criminal Procedure until and

unless the statutes specifically provide.

           In view of the aforesaid, the Learned Magistrate is directed

to freshly take evidence of all the witnesses who deposed before the

Trial Court in course of trial.      The Learned Magistrate would

commence the trial de novo and will be at liberty to take into

account the judgment of the Hon'ble Supreme Court in the case of

Rajnesh Vs. Neha & Anr reported in (2021)2 SCC 324 for assessing

the quantum.      After the evidence is over, the Learned Magistrate

will be at liberty to deliver a fresh judgment on the materials so

adduced.

           As an interim measure till the proceedings before the

learned Magistrate conclude, the husband would go on paying a

sum of Rs.14,000/- (Rs.7,000/- to the wife and Rs.7,000/- to the

minor daughter) from the date of the order i.e. 03.10.2018.

           Needless to state that the subsequent quantum which

would be fixed by the Learned Magistrate, if at all, would be on the

affidavit of assets which would be filed by the respective parties in

consonance with the judgment of the Hon'ble Supreme Court

referred to above. The quantum which has been spelt out by this

Court is an interim measure. Learned Magistrate will be at liberty

to arrive at an independent finding which may be either in excess of

the amount or may not be for paying any amount.

           Accordingly, the judgment and order dated, 30.08.2019

passed by the Learned Sessions Court in Criminal Revision

No.42/2018 is set aside, as also the judgment and order dated
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03.10.2018

passed by the Learned Judicial Magistrate, 6 th Court,

Bankura is also set aside.

With the aforesaid directions, CRR 3569 of 2019 is partly

allowed.

All pending connected applications, if any, are

consequently disposed of.

Learned Registrar (Judicial Service), High Court, Calcutta

is directed to send communications to the Learned Magistrates

conducting proceedings under Section 125 of the Code of Criminal

Procedure to the effect that the evidence of the parties cannot be

and should not be accepted by way of notarial affidavit, and the

same should be physically on dock.