Calcutta High Court (Appellete Side)
Tupur Mallik Nee Shaw vs Somnath Mallick on 28 July, 2022
Form J(1) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRR 2190 of 2022
Tupur Mallik nee Shaw
Vs.
Somnath Mallick
Mr. Abhra Mukherjee
Mr. Sauradeep Dutta
...for the petitioner
Mr. Emon Bhattacharya
Ms. Pooja Sah
...for the opposite party
Item No.10
Heard & Judgment on: 28.07.2022
Bibek Chaudhuri, J.
The applicant in a proceeding under Section 125 of the Code of
Criminal Procedure which has been registered as Miscellaneous Case
No.26 of 2021 before the learned Principal Judge, Family Court,
Calcutta has approached this Court under its revisional jurisdiction
challenging legality, validity and propriety of an order dated 19 th April,
2022 passed by the learned Principal Judge, Family Court, Calcutta
refusing the prayer of the petitioner for interim maintenance.
From the averment made in the instant revision and having
heard the learned advocates for the petitioner and the opposite
party/husband this Court has derived the following undisputed factual
circumstances:-
(i) The petitioner is the legally married wife of the
opposite party.
(ii) Their marriage was solemnized on 5th May, 2001.
(iii) In the said wedlock the petitioner gave birth to a
female child who is now aged about 20 years.
(iv) After 20 years of living conjugal life the petitioner and
her daughter left the matrimonial home on the
allegation that she was subjected to physical and
mental cruelty on illegal demand of dowry which made
her life miserable and she was compelled to leave the
association of the opposite party along with her
daughter.
On the basis of such factual background as well as the averment
made by the petitioner in her application under Section 125 of the
Code of Criminal Procedure she also filed an application praying for
interim maintenance at the rate of 40,000/- per month. By passing
the order impugned the learned Judge in the trial Court refused to
grant interim order of maintenance allowance in favour of the
petitioner citing the following ground:-
"The allegations of dowry and cruelty to extract dowry are too
stale to merit serious consideration. It is difficult to believe that a
man with a grown up and marriageable daughter would now after
about 20 years of his marriage would think of subjecting his wife to
dowry cruelty. He would be more anxious and worried in finding of a
proper groom for his daughter and arranging for her dowry."
It is submitted by the learned advocate for the petitioner that at
the interim stage without recording any evidence the learned Judge in
the trial Court held that the petitioner prayed for interim maintenance
narrating a false and concocted story of cruelty against her husband.
The learned trial Judge disbelieved the allegation of cruelty upon the
petitioner observing, inter alia, that after 20 years of marital life the
opposite party cannot be said to be a perpetrator of cruelty on
demand of dowry because at this stage the opposite party would think
for making arrangement for dowry payment in the marriage of her
daughter.
The above observation itself is contrary to law because both
paying and receiving dowry are criminal offences under Dowry
Prohibition Act. This Court fails to follow how the learned Judge in the
trial Court made such observation when there is no material on record
that the opposite party was trying to make arrangement for the
marriage of her daughter and the groom has demanded dowry.
The above observation is unfortunate, if not callous and it is not
borne out of record.
The learned trial Judge adorning chair of the Principal Judge of
the Family Court was appointed as the learned Judge of the said Court
after completion of a long tenure in judicial service and after being
superannuated. Therefore, this Court does not think it necessary to
remind the learned Judge that while considering an application for
interim maintenance in a proceeding under Section 125 of the Code of
Criminal Procedure, the Court will prima facie see whether the
petitioner has been staying away from her matrimonial home;
secondly whether the petitioner is being paid monetary relief by her
husband during her stay away from her matrimonial home and
whether the petitioner has any independent source of income or not
to maintain herself.
The issue as to whether the opposite party has refused or
neglected the petitioner to maintain her is a question of fact which
can only be decided after recording evidence of the parties. Therefore,
at the initial stage of the proceeding, an application for interim
maintenance filed by the wife/petitioner shall be allowed if the Court
finds that the petitioner is living away from her husband and she has
no source of income to maintain herself. The learned Judge by
passing the impugned order disbelieved the petitioner's case that the
petitioner was compelled to leave the association of her husband on
the ground of cruelty. Such issue being a disputed question of fact
can only be decided at the time of final hearing of the case on the
basis of evidence on record.
Therefore, this Court finds that the impugned order dated 19 th
April, 2022 is patently illegal and liable to be set aside.
The learned trial Judge is requested to decide the application for
interim maintenance filed by the petitioner in the light of the
observation made hereinabove in this order. The learned trial Judge
is also requested to consider the affidavit of assets filed by the
opposite party and make an endeavour to reconcile the statement of
the opposite party in the affidavit of assets. It is open for the learned
advocates for the parties to agitate all issues pertaining to the points
which are necessary to dispose of an application for interim
maintenance in the trial Court.
The learned trial Judge is requested to dispose of the application
for interim maintenance by passing a reasoned order within 15 th
September, 2022.
The revisional application is, thus, disposed of.
(Bibek Chaudhuri, J.)
