Calcutta High Court (Appellete Side)
Shreepurna Lahiri & Anr vs Kallol Chatterjee on 29 July, 2022
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
CRR 1190 of 2017
Shreepurna Lahiri & Anr.
Versus
Kallol Chatterjee
For the petitioners : Mr. Sanat Kr. Das
Mr. Sujan Chatterjee
Mr. Satadru Lahiri
.....Advocates
Heard lastly on : 13.07.2022
Judgment on : 29.07.2022
Jay Sengupta, J.:
1.
This is an application challenging an order dated 24.03.2017 passed
by the Learned Judicial Magistrate, 2nd Court, Malda in Case No.
205M/2015 under Section 125 of the Code of Criminal Procedure.
2. The petitioners are the wife and the minor daughter of the opposite
party. The petitioner no. 1 and the opposite party got married in the year
2005. The marriage was solemnized under the Special Marriage Act. A
female child, being the petitioner no. 2, was born of such wedlock. The
opposite party and the other in-laws allegedly subjected the petitioner no. 1
to physical and mental cruelty for dowry demand and finally on 05.10.2012,
she and her child were purportedly driven out from the matrimonial home.
The petitioner no. 1 filed the criminal case against the opposite party, inter
alia, under Section 498A of the Penal Code. On 06.06.2015, the petitioner
no. 1 filed an application under Section 125 of the Code claiming
maintenance allowances at the rate of Rs. 20,000/- per month for herself
and Rs. 15,000/- per month for her minor child. She claimed that the
husband was earning about Rs. 1 lakh per month from his service while she
had no independent income. Although, the application was filed in 2015,
even after filing of written objection and fixing several dates, the issue of
interim maintenance was not decided. The petitioner filed an application
under Section 483 of the Code before this Court. By an order dated
24.03.2017 passed in CRR No. 120 of 2017, this Court directed the matter
to be disposed of within thirty days from the said date. It was only after this
that the impugned order was passed by the learned Trial Court. On
05.03.2019, as an interim measure, this Court directed the opposite party to
pay a sum of Rs. 10,000/- per month to the wife for maintenance of the
child. Thereafter, on 06.04.2022, the petitioner no. 1 withdrew this
application so far as she was concerned as she had got married to another
person in the meantime.
3. The matter came up for hearing before this Court on several
occasions. Initially, the opposite party was represented by a learned
Advocate. In fact, an opposition was also filed by the opposite party. After
conclusion of hearing on 05.03.2019, the learned counsel for the opposite
party prayed for liberty to file a supplementary affidavit. The same was
granted. But, no such supplementary affidavit was ever filed. It appears that
on that date i.e., on 05.03.2019, certain questions arose regarding non-
disclosure of income by the husband opposite party and about certain
claims, he had made regarding his wife's income. After this, several dates
were fixed. But, after a point no one came to represent the opposite party.
Several notices were sent, by post and through the aegis of the State. All
efforts, to get the opposite party on board, fell flat. Accordingly, the matter
was heard ex parte.
4. Learned counsel, appearing on behalf of the petitioners, submitted as
follows. The learned Magistrate erred in refusing interim maintenance in
favour of the petitioners merely on the ground that the claims of the adverse
parties about their incomes were not substantiated. The prime object of
awarding interim maintenance was to prevent vagrancy of women and
children. Bald claims of the husband about wife's income could not come in
the way of this beneficial piece of legislation which came within the ambit of
Article 15 of our Constitution. For argument's sake, even if it was presumed
that a wife was earning something nominal, she could not be denied
maintenance. In fact, she was entitled to the same standard of living that
she would enjoy if she been able to live in the husband's household. By any
stretch of imagination, the minor child could not be denied interim
maintenance even for a moment.
5. The prime contentions of the husband opposite party, as would be
evident from his opposition, are as under. The opposite party had never
neglected to maintain his wife and child. He disputed his income as alleged
by the wife. His further case was that the wife was having a business and
was earning about Rs. 2.77 lakhs per year as per her income tax return of
2011-2012. She also had a rent income from a flat.
6. I heard the learned counsel appearing on behalf of the petitioners and
perused the revision petition and the affidavits filed.
7. As the petitioner no. 1 has withdrawn her claim for maintenance
allowance, the only question left to be answered is the question of award of
interim maintenance allowance for the minor child.
8. First, it is very unfortunate that the learned trial Court did not decide
the issue of interim maintenance till March 2017 although the application
for maintenance was filed in 2015. The issue was finally decided after an
interference by this Court to expedite the proceeding at the behest of the
wife. Regardless of whether the direction by this Court had any role to play
with it, the learned Trial Court decided to deny both the wife and the child
any maintenance on a rather superfluous ground that the parties could not
satisfactorily prove their claims regarding income.
9. Secondly, it was nobody's case that the marriage did not take place
between the parties. Nor was it a case where the husband was challenging
the paternity of the child. The husband was evidently an able bodied man
capable of earning a decent income. Yet, not a single farthing was granted as
interim maintenance allowance for the wife and the child.
10. It appears that the learned trial Court was completely oblivious of the
fact that the provisions of Chapter IX of the Code of Criminal Procedure were
meant to avoid destitution and vagrancy of the ones affected. These
provisions came within the sweep of Article 15 of the Constitution of India.
Therefore, any interpretation of or giving effect to any provision contained in
Chapter IX of the Code would have to be done in consonance with the same.
11. In Rajathi vs. C. Ganeshan, (1999) 6 SCC 326 the Hon'ble Apex Court
had held that a prima facie view has to be taken in deciding applications of
maintenance allowance under Section 125 of the Code and the Court is not
supposed to go into a meticulous analysis of disputed facts. In case of
interim maintenance allowance, the standard is quite obviously even less
than that.
12. I do not find any worthwhile reason to deny the child maintenance
allowance in the facts and circumstances of the present case.
13. The petitioner no. 1 had made out a case for staying away from the
matrimonial home. In fact, she was allegedly driven out from there. She
alleged cruelty by the former husband and the other in-laws for which she
had filed a criminal case. She further claimed that the opposite party was
earning Rs. 1 lakh per month. On the other hand, she and her minor child
were living at the mercy of her father. The child was a student of a reputed
school.
14. Although the husband had sufficient opportunity to disclose his
income and to contest the case by placing facts supporting his contentions,
he has chosen to do none. In any event, he cannot shy away from
maintaining his minor child.
15. Till the exact income of the opposite party could be ascertained, a bare
minimum sum has to be awarded to the child keeping in mind their
ostensible standard of living including the fact that the child is a student of
a prominent school.
16. In view of the above, especially after taking into consideration the
apparent standard of living of the parties and the rising price indices, I set
aside the impugned order and I direct the opposite party to pay maintenance
allowance to the petitioner no. 1 for the minor child at the rate of Rs.
10,000/- per month, payable from the date of order. If any arrears have
fallen due in respect of the direction passed by this Court on 05.03.2019, an
appropriate execution providing can be initiated for the same.
17. The learned trial Court is further requested to conclude the
proceeding as expeditiously as possible.
18. The observations made herein were only for deciding the revision and
the learned trial Court shall not be swayed by them while deciding finally
the application for maintenance allowance under Section 125 of the Code.
19. With these observations, the revisional application is disposed of.
20. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J.)
P. Adak
