Prasanta Roy vs Nupur Roy Biswas
2022 Latest Caselaw 7329 Cal

03.11.2022 Item no.1.

Court No.35.

I.T

C.R.R 1859 of 2015 and CRAN 1 of 2015 (Old No. CRAN 3415 of 2015

Prasanta Roy

-Vs.-

Nupur Roy Biswas

Mr. Ayan Bhattacharjee Mr. Sharequl Haque ........ For the Opposite Party No.2

With

C.R.R 2489 of 2015 and CRAN 1 of 2015 (Old No. CRAN 2440 of 2015

Nupur Roy Biswas

-Vs.-

Prasanta Roy

Mr. Ayan Bhattacharjee Mr. Sharequl Haque ........ For the Petitioner.

Ld. Advocate appearing on behalf of the opposite party

no.2 in CRR 1859 of 2015 is present. None appear on behalf of

the petitioner. He is also representing the petitioner in CRR

2489 of 2015, in which case none is appearing for the O/PS.

It is submitted that the present revision case is listed

together with the other one being CRR 2489 of 2015 and both

are connected with each other. It is submitted further that the

opposite party/wife in CRR 1859 of 2015 has filed the other

revision case (CRR 2489 of 2015) and in both the cases the

impugned judgment of the court below dated 18th February,

2015 in Misc Case No.116 of 2009 is challenged.

Having being satisfied about the completion of service

so far as CRR 2489 of 2015 is concerned and in view of absence

of the petitioner in the present case both the connected matters

are taken up together for passing necessary order.

On wife's behalf it is submitted that the impugned order

is a non-speaking one and by dint of the same a paltry and

insufficient amount of Rs.8000/- per month was awarded to the

wife as maintenance, in a proceeding under Section 125 of

Cr.P.C. That, the same is not even commensurate and coherent

with the monthly income and standard of living of the husband.

It is submitted that the husband being a government servant

being employed with the Indian Railways and earning

handsomely from his such avocation, is sufficiently capable to

provide adequate maintenance to the wife.

On perusal of the husband's contentions on affidavit, it

appears that he has also pleaded non application of mind by the

Magistrate while passing the impugned order and non-

consideration of the attending facts and circumstances of the

case. He has pleaded the maintenance amount to the tune of

Rs.8000/- per month to be exorbitant and beyond his capacity to

pay.

The Magistrate by dint of his order dated 18th February,

2015 has disposed of wife's petition under Section 125 of Cr.P.C

by directing the husband to pay a sum of Rs. 8000/- per month

as maintenance allowance to the wife from the date of the said

order, i.e, 18th February, 2015. The Magistrate has also directed

to pay a sum of Rs. 15000/- as litigation cost to the wife. Both

the spouses are aggrieved of the said order and challenge the

same by filing the present two revisions respectively, however, on

different grounds.

As a matter the fact, it can be noted that the impugned

order has been passed by the Magistrate upon evidence.

Necessary ocular and documentary evidence were there before

the court at the time of delivering the judgment. Needless to say

however, that the parties have argued non-consideration of the

same resulting into delivering of the alleged impugned judgment.

It is pertinent to note that at present there are well

formulated guidelines governing the field are in this case,

pursuant to the verdicts of the Hon'ble Apex Court, regarding

determination of the amount of maintenance allowance payable

under Sections 125 of Cr.P.C. It is profitable in the

circumstances to note the directions and guidelines given by the

Hon'ble Supreme Court in the case of Rajnesh vs Neha & Anr.,

reported in (2021) 2 SCC 324, by dint of which the Hon'ble Apex

Court has structured the criteria to arrive at a just decision as

regards maintenance payable in a case like this. Definitely at

the relevant point of time when the impugned order was passed

in 2015, there was no such direction of the Hon'ble Supreme

Court in this regard as it is in Rajnesh's case. However,

considering the specific facts and circumstances of the present

case where the income and capacity of the husband is disputed

and also the eligibility of the wife is denied and disputed

regarding her claim of maintenance in a proceeding under

Sections 125 of Cr.P.C, it would be just and proper to embark

upon the guidelines formulated in Rajnesh's case to come to an

appropriate decision in this particular matter, between the said

two parties. This shall serve the ends of justice, negating any

possibility of discrimination or miscarriage of justice.

Therefore CRR 1859 of 2015 and CRR 2489 of 2015

both are disposed of with this common order by directing setting

aside of the impugned order dated 18th February, 2015 passed

by ld. Magistrate in Misc Case No.116 of 2009.

Ld. Magistrate is directed to consider wife's petition

under Section 125 of Cr.P.C as pending and shall require the

directions of the Hon'ble Apex Court as made in Rajnesh's case

to be complied with duly and immediately by the parties by

issuing appropriate order. He shall thereafter dispose off the

said application of the wife under Section 125 of Cr.P.C, on the

basis of the entire material available before it.

CRR 1859 of 2015 and CRAN 1 of 2015 (Old No: CRAN

3415 of 2015) With CRR 2489 of 2015 and CRAN 1 of 2015 (Old

No: CRAN 2440 of 2015) both are disposed of with this common

order, connected application in both the case, if any, are also

disposed of.

Certified website copies of this judgment, if

applied for, be supplied to the parties subject to compliance

with all the requisite formalities.

(Rai Chattopadhyay, J.)