Calcutta High Court (Appellete Side)

Sankar Singh vs Pratima Singh on 23 August, 2023

                     IN THE HIGH COURT AT CALCUTTA
                       Criminal Revisional Jurisdiction
                             APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)



                                    CRR 854 of 2020

                                     Sankar Singh

                                          Vs.

                                     Pratima Singh



For the Petitioner               :      Mr. Shivaji Kumar Das,
                                        Ms. Rupsa Sreemani.




For the Opposite Party          :       None.


Heard on                        :       31.07.2023

Judgment on                     :       23.08.2023

Shampa Dutt (Paul), J.:

1.

The present revision has been preferred against an order dated 13th

November, 2019 passed by the Court of the Learned Judicial Magistrate,

1st Court, Barrackpore, District-North 24 Parganas in connection with M.

Case No. 639 of 2009 (Pratima Singh vs. Sankar Singh) being a proceeding

under Section 125 of the Code of Criminal Procedure, 1973.

2. The petitioner's case is that the petitioner is a Driver by occupation and

through his meagre earnings he somehow maintains his livelihood.

3. The opposite party herein allegedly claiming herself to be his wife had

filed a petition under Section 125 of the Code of Criminal Procedure, 1973

against him in the Court of the Learned Additional Chief Judicial

Magistrate, Barrackpore, District-North 24 Parganas which was registered

as M. Case No. 639 of 2009 (Pratima Singh vs. Sankar Singh) inter alia

praying for interim maintenance and final maintenance for herself and her

minor daughter and minor son which after being registered was later

transferred to the Court of the Learned Judicial Magistrate, 1st Court at

Barrackpore, District-North 24 Parganas for trial and disposal.

4. In the said Maintenance Petition it was alleged by the opposite party

herein that she was married with the petitioner in the month of April, 1991

and thereafter she moved to his house. It was further alleged that the

marriage was consummated and a female child and a male child were born

out of the said wedlock. It was further alleged that during her stay at the

matrimonial home she was subjected to physical and mental torture by the

petitioner. On 30th November, 2009 she along with her son and daughter

were driven out by the petitioner from her matrimonial home and having

no other option she took shelter in her paternal home. It is further alleged

that even after having sufficient means and capability the petitioner herein

deliberately neglected to maintain her and her children. Their daughter is

studying in Class-IX at St. Paul's Shyambazar and their son is studying in

Class-III in Central Model School, Bon Hooghly, at the time of filing of the

case and she has to bear all their expenses including educational

expenses. She is thus passing her days through great difficulties and in

order to save herself from the financial hardships and to make the

petitioner herein discharge his duties, she filed this instant application.

The petitioner has sufficient income in the form of pension to the tune of

Rs.17,500/- per month and is a broker in the share market and is also a

Driver by profession. On the other hand the opposite party herein has no

means to maintain herself and hence prayed for interim maintenance of

Rs.5,000/- per month for herself, Rs.3,000/- per month for her daughter

and Rs.2,500/- per month for her son from the petitioner.

5. The specific case of the petitioner/husband is that no marriage took

place between him and the opposite party and no child was born out of the

alleged wedlock. It is further stated by him that the daughter of the

opposite party eloped and now is married to one Bhombal Das. That the

opposite party herein never resided at the address given in the cause title.

She resided at 33, Meghnad Saha Road, Police Station-Dumdum with one

Sanjay Agarwal as husband and wife. It was further stated by him that in

the year 1990, the opposite party had fled away from her home with one

Partha Sen of 72/8, D.B. Road (East), Kolkata-700 035. And so far as his

income is concerned, he has a Driving License for Driving a Taxi Cab, but

denied that he is a broker in the Share Market. On the other hand, the

opposite party herein works as a Superintendent in the office at 1525,

Madurdaha, Hassainpur, Kalikapur and earns Rs.25,000/- per month.

6. Vide order dated 8th March, 2013, the trial Court was inter alia pleased

to dispose of on contest the petition for interim maintenance and the

petitioner herein was directed to pay Rs.2,500/- as monthly maintenance

to his wife, Rs.2,000/- per month for the daughter and Rs.1,500/- per

month for the minor daughter with effect from the date of the order. It was

further ordered that the petitioner herein shall pay the entire sum of

Rs.6,000/- for the month of March within next 10 days to the opposite

party herein and thereafter shall pay the same within 7th day of each

current month when it falls due. It was further inter alia directed that the

order shall remain effective till the disposal of the application under

Section 125 of the Code of Criminal Procedure, 1973 and liberty was

granted to the opposite party herein to put the order into execution if the

petitioner fails to comply with the same. By passing the said order the

Learned Magistrate was inter alia pleased to fix the dates for evidence of

the opposite party herein.

7. That in compliance with the order dated 8th March, 2013 passed by the

learned Magistrate, the petitioner herein was regularly making payment of

maintenance in favour of the opposite party.

8. On 13th November, 2019 the petitioner herein as OPW filed a petition

before the Learned trial Court stating that the male child namely Karan

Singh who was born at Jeevan Deep Nursing Home on 9th January, 2001

has already attained majority and now he is aged about 18 years and 9

months and has also started earning by himself and thus not dependent

upon the petitioner. Hence, a prayer was made before the Learned Trial

Court to pass an order to stop the payment of maintenance allowance in

favour of the said Karan Singh.

9. On 13th November, 2019 the learned Magistrate was pleased to observe

that Section 127 of the Code of Criminal Procedure, 1973 provides that

maintenance allowed can be altered by proof of change of circumstances

for which a separate petition is to be made on the basis of the petition filed

by either of the party and a separate Misc. Case is to be initiated.

Accordingly, the learned Court was pleased to pass orders that the

petitioner is to file a proper petition as per law for any kind of modification

of maintenance order and the petition was rejected.

10. Mr. Shivaji Kumar Das, learned counsel for the petitioner has

submitted that the Learned Trial Court while passing the impugned order

erred both in law and in facts in rejecting the petition dated 13th

November, 2019 filed by the petitioner.

11. That the impugned order passed by the Learned Trial Court is

otherwise bad both in law and in facts and the same is liable to be set

aside in the interest of justice.

12. In spite of due service there is no representation on behalf of the

opposite party.

13. Misc. Case 639 of 2009 is still pending. The revision is against an order

rejecting an application under Section 127 Cr.P.C.

14. On 13.11.2019 the petitioner filed a petition for modification of the

order of maintenance as the son had become a major.

15. The learned Magistrate on the same day rejected the petition on the

ground that:-

"It is provided by S.127 of Cr.P.C. that maintenance allowed can be altered on proof of change of circumstances. Separate petition is to be made on basis of petition filed by either party. Separate misc. case is to be initiated. Accordingly, the o.p. is to file proper petition as per law for any kind of modification of maintenance order.

This petition is rejected.

To 17.06.20 for O.P.W."

16. Section 127 Cr.P.C. reads as follows:-

"127. Alteration in allowance.-

(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,-

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance, as the case may be,] after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a [monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be

paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person [as monthly allowance for the maintenance and interim maintenance and expenses of proceeding, as the case may be,] the said order."

17. The power under Section 127 Cr.P.C. flows from Section 125

Cr.P.C. itself, any person who receives, a monthly allowance under

section 125 of Cr.P.C. for the maintenance or interim maintenance,

such as wife, child, father or mother, the Magistrate can make such

alteration in monthly allowance depends on proof of a change in the

circumstances of the appropriate case.

18. Thus, the learned Magistrate, instead of rejecting the petition for

modification of the order of maintenance, should have directed for

the same to be registered as a miscellaneous case connected to the

miscellaneous case under Section 125 Cr.P.C.

19. Accordingly, the order dated 13th November, 2019 passed by the Court

of the Learned Judicial Magistrate, 1st Court, Barrackpore, District-North