Barnali Sarkar vs The State Of West Bengal & Anr
2022 Latest Caselaw 1191 Cal

D/L 90 March 15, CRR No.562 of 2019

Bpg.

In Re: An application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973;

Barnali Sarkar Versus The State of West Bengal & Anr.

Mr. Sagar Saha, Mr. Subir Debnath, Ms. Roma Roy.

...for the petitioner.

Mr. Amlan Jyoti Sengupta, Mr. M. Thakur, Mr. Partha Sarathi Das.

...for the opposite party no.2.

Affidavit-of-service filed by the petitioner be kept with the

record.

The present revisional application has been preferred

challenging the judgment and order dated 14.01.2019 passed by he

learned Additional District and Sessions Judge, Ranaghat, Nadia in

Criminal Motion No.16 of 2018 wherein the subject matter of

challenge related to the order dated 20.03.2018 passed by the

learned Judicial Magistrate, 2nd Court, Ranaghat in Misc. Case

No.152 of 2014 (T.R.No.256 of 2014) under Section 125 of the Code

of Criminal Procedure.

Mr. Saha, learned advocate appearing for the petitioner

draws the attention of this Court to the fact that the learned

Magistrate on consideration of the evidence awarded maintenance

only to the minor daughter and refused to pay any maintenance to

the wife. Learned advocate draws the attention of this Court to the

relevant observations made by the learned Magistrate as follows:

" Now, in this respect, a normal human having a

high qualification is obvious to adopt such simple mode of

earning by giving private tuitions. In this case, even if it is

assumed that petitioner has not adopted such mode and

has no income by giving private tuition but it can be

inferred by a prudent man that petitioner having such high

qualification is well capable of earning by giving private

tuitions at her residence. Thus, the petitioner having

passed her masters degree is expected not to sit idle at

home and at least earn by giving private tuitions."

Learned revisional court emphasized on the issue of

observation and finding of the trial court that without any assigning

any sufficient reasons, the petitioner has left her matrimonial home

and approved the finding regarding the capacity of earning by way

of private tuitions at her residence.

Mr. Sengupta, learned advocate appearing for the

opposite party no.2/husband has supported the orders passed by

the learned Magistrate as well as that of the learned revisional

court/sessions court. According to the learned advocate, the wife

has filed the present case on her whims and caprices and there was

no allegation of torture being inflicted upon her in close proximity of

time when the incident was alleged. It has been emphasized that the

first complaint was filed before a court of law after ten months of

her leaving the matrimonial home and the integrity of such

complaint is to be tested. Learned advocate additionally submits

that the petitioner has been diligent and without any fail complied

with the order passed by the learned Magistrate so far as it related

to the amount of Rs.5,000/- awarded to the minor daughter.

I have assessed the orders passed by the learned

Magistrate as well as the learned sessions court. The manner of

interpretation of sufficient reason which has been approved by the

sessions court particularly the personal opinion that a marriage

involves certain domestic and mental adjustments, co-operation

between the parties and lastly some endeavour to carry forward the

marital tie throughout the life. Herein the petitioner seems to be

lacking the above criterias. Along with the same, the learned

Magistrate was pleased to presume that the petitioner having higher

qualification is not supposed to sit idle and would be giving private

tuitions.

Learned Magistrate grossly ignored the evidence of PW 1

wherein it has been categorically stated that she was subjected to

physical and mental torture for demand of further dowry and she

was abused and the opposite party used to torture her mentally by

threatening her over telephone.

There are further allegations of stridhan articles being

kept by the husband and his family members.

Be that as it may, without going into the intricacy of each

and every allegations, I am of the opinion that the reasons which

were assigned by the wife were supposed to be considered by the

learned Magistrate in the background of the fact that whether the

said ground was sufficient enough for the wife to stay separately or

away or refused to stay with the husband. I also do not agree with

the findings of the learned Magistrate on the basis of certain

presumptions that as the lady is highly qualified she cannot sit idle

and is supposed to give private tuitions. There were no materials

before the learned Magistrate and the learned Magistrate

interpreted presumption as if the same was a proof. The learned

sessions court also without application of any mind approved and

endorsed the order passed by the learned Magistrate which was in

gross ignorance of the settled principles of law.

Having regard to the observations made above, I set aside

the finding passed by the learned Magistrate to the extent that the

petitioner in the instant case is not liable to receive maintenance

from the opposite party no.2/husband for herself (and the same

being affirmed by the learned sessions court). However, I restrain

myself from passing any quantum of maintenance at this stage.

Both the parties are directed to appear before the learned

Magistrate wherein the petitioner would place her claim on the

basis of status she is entitled. The opposite party no.2/husband

will be also entitled to resist such claim on the basis of the

materials which are available with him. The learned Magistrate

would decide such quantum within a period of 60 days from the

date of communication of this order after affording opportunity to

both the parties.

The aforesaid order in no manner interferes with the

order of maintenance granted to the minor daughter. If there are

any execution case which is pending relating to the dues of

maintenance of the minor daughter, the learned Magistrate would

resort to harsher process of law for executing the same in

accordance with law.

With the aforesaid observations, CRR 562 of 2019 is

disposed of.

Pending application, if any, is consequently disposed of.

Interim order, if any, is hereby vacated.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Tirthankar Ghosh, J.)