Calcutta High Court (Appellete Side)
Rup Abeda Begum @ Bibi vs The State Of West Bengal & Anr on 29 August, 2023
51 29.08.
2023 CRR 367 of 2017
Ct IA NO: CRAN 1 of 2017 (Old No: CRAN 1235 of 2017)
rup Abeda Begum @ Bibi
Vs.
The State of West Bengal & Anr.
Mr. Prosenjit Mukherjee
Mr. Arghya Kamal Das,
Ms. Poulami Dutta ... for the petitioner.
Mr. Binoy Kumar Panda,
Mr. Pratick Bose ... for the State.
This revisional application has been filed assailing
the judgment and order dated 30.11.2016 passed by the
Additional Sessions Judge, Birbhum, Rampurhat in
connection with Criminal Revision No. 31 of 2015,
whereby learned Judge remanded back the matter with a
direction upon the learned Additional Chief Judicial
Magistrate, Rampurhat, Birbhum to deliver the judgment
after settlement of issue of paternity of the child.
Learned advocate appearing on behalf of the
petitioner has submitted that the paternity of the child
was disputed by the opposite party by filing an
application before the learned Additional Chief Judicial
Magistrate Rampurhat, Birbhum on 20.03.2014 claiming
a DNA test of the child which was considered by the
learned Additional Chief Judicial Magistrate and rejected
the said application. Thereafter, learned Additional Chief
Judicial Magistrate Ramputhat, Birbhum took up the
application under Section 125 of the Criminal Procedure
Code and after considering the pleadings of the parties as
well as evidence on record return its finding that the
petitioner/wife is entitled to maintenance for herself as
well as for her child.
Learned Sessions Judge sitting in revision against
the judgment and order passed by the learned Additional
Chief Judicial Magistrate, Rampurhat, Birbhum observed
that paternity of the child was required to be adjudicated
as the same was refused by the learned Additional Chief
Judicial Magistrate before disposal of the application
under Section 125 of the Criminal Procedure Code.
On careful perusal of the judgment impugned, I find
that learned Additional Sessions Judge confined his
discussion only on the issue of paternity of child but
surprisingly no such issue was ever taken by the opposite
party/husband even in his show cause petition in the
petition in the proceeding under Section 125 of the
Criminal Procedure Code.
It is needless to mention here that the order of
refusal of the application for DNA test filed on 20.03.2014
was never assailed before any higher forum.
Therefore, in my opinion, learned Additional
Sessions Judge in disposing of the criminal revision
against the judgment and order passed by the learned
Additional Chief Judicial Magistrate, Rampurhat,
Birbhum in Misc. Case No. 299 of 2011 had no authority
to discuss the issue of paternity of child and remanding
back the issue to the Court of learned Additional Chief
Judicial Magistrate, Rampurhat, Birbhum for decision on
the particular issue of DNA test.
In the aforesaid view of the matter, the judgment
and order passed by the learned Additional Session
Judge, Birbhum is not at all sustainable and liable to be
set aside.
The judgment and order dated 30.11.2016 stands
set aside.
Learned Additional Sessions Judge, Birbhum is
directed to rehear the revisional application which was
filed being aggrieved and dissatisfied with the judgment
and order dated 17.07.2015 passed in Misc. Case No.
299 of 2011 by the learned Additional Chief Judicial
Magistrate, Rampurhat, Birbhum within two months
from the date of receipt of this order.
Let a copy of this order be communicated to the
learned Additional Sessions Judge, Birbhum for
compliance.
With the aforesaid observation, the revisional
application along with CRAN 1 of 2017 stands disposed
of.
Urgent photostat certified copy of the order, if
applied for, be given to the parties on usual
undertakings.
All parties to this revisional application shall act on
the server copy of this order downloaded from the official
website of this Court.
(Bibhas Ranjan De, J.)
