Calcutta High Court (Appellete Side)
Smt. Joyita Bandyopadhyay Nee ... vs The State Of West Bengal And Anr on 6 September, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.R 2185 of 2021
Smt. Joyita Bandyopadhyay nee Ganguly
Vs.
The State of West Bengal and Anr.
For the Petitioner: Mr. Kushal Mukherjee, Adv.,
Mr. Indrajit Sen, Adv.,
Mr. S. Medda, Adv.
For the Opposite Party: Mr. Biswajit Manna, Adv.
Heard on: 18 August, 2022.
Judgment on: 06 September, 2022.
BIBEK CHAUDHURI, J. : -
1.
Applicant of Misc Case No.109 of 2017 (T.R No.141 of 2017) being a
proceeding under Section 125 of the Code of Criminal Procedure has
challenged the legality, validity and propriety of an order dated 24th
February, 2020 passed by the learned Judicial Magistrate, 4th Court,
Serampore at Hooghly directing the opposite party/husband to pay
maintenance allowance at the rate of Rs.6,000/- per month to the
applicant from the date of the of the order on the ground that the learned
Magistrate while fixing the quantum of maintenance failed to consider the
monthly income of the opposite party. The learned Magistrate failed to
appreciate the income of the opposite party who himself admitted his
income to the tune of Rs.76,495/- and awarded inadequate maintenance
to the tune of Rs.6,000/-.
2. The case of the petitioner is that the petitioner is the legally married
wife of opposite party. Their marriage was solemnized on 3rd February,
2001 as per Hindu Rites and Customs. Their marital relation started
deteriorating and on 5th March, 2015 the petitioner left her matrimonial
home and started residing at her brother's house. During her stay, the
opposite party did not pay a penny knowing well that the petitioner was
suffering from tuberculosis.
3. At the time of filing of the application, the opposite party was
designated as "Assistant of LIC" having monthly income of Rs.60,000/- to
which the opposite party claimed monthly maintenance allowance at the
rate of Rs.10,000/-.
4. During pendency of the aforesaid maintenance case the petitioner
used to receive a sum of Rs.3,000/- per month towards interim
maintenance. An application under Section 6 of the Right to Information
Act was sent by the petitioner dated 21st December, 2018 where it was
informed that the opposite party's gross salary for the month of November
2018 was 76,495.73/-. At the time of hearing of the maintenance
application the learned court below failed to consider the income of the
opposite party and the basic as well as medical needs of the petitioner
and awarded a meager amount of Rs.6,000/- vide order dated 24th
February, 2020.
5. The petitioner made another application under Section 6 of the
Right to Information Act to the Senior Branch Manager of LIC to which it
was informed by a reply dated 10th August, 2021 that the gross salary of
the opposite party for the month of July 2021 was Rs.1,16,628.42/-.
6. The petitioner now prays for enhancement of her maintenance at
the rate of more than Rs.10,000/- per month without amending the
prayer portion.
7. The only issue involved in the revision is as to whether the
revisional court can pass an order enhancing quantum of maintenance
allowance considering the present monthly income of the opposite party
in the absence of such pleading in the application under Section 125 of
the Code of Criminal Procedure.
8. Learned Advocate for the petitioner submit that in her application
under Section 125 of the Code of Criminal Procedure the petitioner made
a specific statement stating, inter alia, that the opposite party/husband is
an employee of Life Insurance Corporation of India and earns more than
60,000/- per month. During pendency of Misc Case No.109 of 2017, the
petitioner filed a report which she obtained on filing of an application
under Section 6 of the Right to Information Act to show that the gross
salary of the opposite party was Rs.76,495.73/-. The learned Magistrate
in the impugned judgment accepted the said report in view of Section 58
of the Evidence Act as proof of income of the opposite party. It is
contended by the learned Advocate for the petitioner that the petitioner
being the legally married wife of the opposite party is entitled to get at
least 1/3rd of the monthly income of her husband as maintenance
allowance. Without considering such aspect of the matter, the learned
Magistrate arbitrarily fixed monthly maintenance allowance at the rate of
Rs.6,000/- per month for the petitioner.
9. The learned Advocate for the opposite party, on the other hand
submits that the revisional court cannot enhance quantum of
maintenance allowance without giving opportunity to the opposite party
to lead evidence in his behalf. It is also submitted by him that Misc Case
No.109 of 2017 was disposed of on 24th February, 2020. Subsequently,
the petitioner filed an application under Section 127 of the Code of
Criminal Procedure on 22nd March, 2021 praying for enhancement of
maintenance allowance on changed circumstances. The said application
under Section 127 of the Code of Criminal Procedure was however
dismissed as withdrawn by the trial court on 3rd June, 2021.
Subsequently, the petitioner filed the instant revision on 8th October,
2021, that is after a lapse of about one year and seven months. It is
contended by the learned Advocate for the opposite party that the instant
revision is hopelessly barred by limitation and on such ground the instant
revision should be dismissed summarily.
10. Having heard the learned Advocate for the parties and on careful
perusal of the materials on record, I like to state at the outset that
without an order under Section 125 of the Code of Criminal Procedure is
revisable under Section 397 read with Section 401 of the Code of Criminal
Procedure, the power under Section 482 cannot be exercised due to the
following reasons:-
i. That power is not to be resorted to if there is specific
provision in the code for redress of the grievance of the agreed
party.
ii. That it should be exercised very sparingly to prevent abuse of
process on any court or otherwise to secure the ends of
justice.
iii. That it should not be exercised as against the express bar of
law in grafted in any other provision of the Code of Criminal
Procedure.
11. In the context of criminal law, the well settled principle is that what
cannot be done directly, cannot be done indirectly. Therefore, when an
order under Section 125 of the Code of Criminal Procedure is revisable,
provision of Section 482 of the Code of Criminal Procedure cannot be
availed of to avoid the rigors of the law of limitation.
12. The instant application under Section 401 of the Code of Criminal
Procedure is hopelessly barred by limitation. Therefore, this Court is not
in a position to grant any relief in favour of the petitioner.
13. At the same time this Court is not unmind to note that for seeking
enhancement of maintenance, there is no need for amendment in the
claim petition. In Naresh vs Deepika reported in (2005) 10 SCC 299 the
Hon'ble Supreme Court was pleased to hold that increase of the earning of
the husband may afford a good ground for enhancement of maintenance.
14. In the instant case, the learned Advocate for the petitioner submits
at the time of argument that present monthly income of the petitioner is
more than 1,00,000/-. Therefore maintenance allowance should be
enhanced in favour of the petitioner.
15. As this Court has already held that the instant revision is barred by
limitation, this Court cannot grant any relief in favour of the petitioner
and the instant revision is liable to be dismissed.
16. Accordingly the instant revision is dismissed on contest. However
this order will not disentitle the petitioner from filing an appropriate
application under Section 127 of the Code of Criminal Procedure claiming
enhancement of maintenance allowance on the ground of increase of
salary of the opposite party.
(Bibek Chaudhuri, J.)
