Smt. Subhra Dey vs Sri Subhas Dey
2023 Latest Caselaw 4474 Cal

              IN THE HIGH COURT AT CALCUTTA

               (Criminal Revisional Jurisdiction)

                         Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                       C.R.R. 2911 of 2018
                        Smt. Subhra Dey
                               Vs.
                         Sri Subhas Dey


For the Petitioner               : Mr. Sourabh Sengupta, Adv.


For the State opposite party    : Mr. Sanjib Seth, Adv,


Heard on                        : June 28, 2023
Judgment on                     : July 25, 2023



Bibhas Ranjan De, J.

1. Judgement and order dated 25.07.2018 passed by Ld.

Additional District Judge, Fast Track Court No. 1, Howrah

in Criminal Revision No. 100 of 2017 arising out of

judgement and order passed by Ld. Judicial Magistrate, 6th

Court, Howrah in connection with Misc Case No. 150 of

2014, is challenged.

2. Ld. Magistrate in disposing the application, under Section

125 of the Code of Criminal Procedure (hereinafter referred

to as CrPC) returned his findings in favour of the petitioner

by allowing maintenance to the tune of Rs. 5,000/- per

months to the petitioner and Rs. 4,000/-per months for her

minor daughter. Ld. Magistrate took the averments of the

application under Section 125 CrPC into consideration in

terms of evidence adduced on behalf of the petitioner. Ld.

Magistrate relied on the averments of the application

regarding torture caused upon the petitioner by her in laws

after four months of her marriage on demand of Rs.

2,000,00/-

3. Ld. Additional Sessions Judge, Fast Track Court, shaped

the contentious issue from a different angel. Ld. Judge, by

referring to the evidence on record, returned his finding that

petitioner voluntarily left her matrimonial home after taking

into the fact of no complaint either before police or before

any forum as well as affidavit sworn by the petitioner herself

in a MAT Suit under Section 9 of the Hindu Marriage Act,

filed at the instance of opposite party/husband. Ld. Judge,

returned his findings against the petitioner after evaluating

the evidence adduced in the case.

4. In exercising revisional jurisdiction this court is only to find

out whether the order impugned suffered from any illegality

of impropriety.

Background in Brief

5. Admittedly, marriage between the parties was solemnized on

23.11.1999 and a girl child was born on 02.11.2004 out of

wed-lock. From the application under Section 125 of the

CrPC it is found that after four moth of her marriage she

was subjected to torture on demand of 2,000,00/-which

could not be satisfied and as a result she along with her

minor daughter were driven out on 10.3.2014.

Respondent/opposite party filed one application for

restoration of conjugal rights under section 9 of the Hindu

Marriage Act on 14.03.2014 which was pending before Ld.

Additional District Judge, 5th Court, Alipore under MAT Suit

No. 37 of 2014.The Mat suit being no. 37 of 2014 was

withdrawn by the opposite party/respondent in view of

submission of one affidavit filed by the petitioner/wife

stating inter alia as follows:-

"2. That due to some misunderstanding and different taste

and habit, that is opinion, your petitioner went to her

parental house along with her minor daughter. That effect

the petitioner hereinabove started the above suit for

restitution of conjugal right against the petitioner i.e.

against the respondent."

6. Thereafter, petitioner filed the application under Section 125

of the CrPC which as registered as Misc. Case No. 150 of

2014 as well as one application under domestic violence act,

registered as Misc Case No. 158 of 2014. The case under the

domestic violence was withdrawn at the instance of both the

parties. On 07.07.2014 petitioner went to the matrimonial

home. Subsequently on 25.07.2014 respondent went to the

petitioners fathers house along with the petitioner but she

failed to return to matrimonial house due to sickness of

daughter.

7. Ld. Advocate, Mr. Sourabh Sengupta, appearing on behalf of

the petitioner has referred to evidence on record and tried to

impress this court that after the petitioner was driven out in

the year 2014 she returned back to her matrimonial home

on 07.07.2014. Mr. Sengupta has referrd to evidence of the

petitioner (PW1) and his father (PW2) and contended that

petitioner succeeded to prove the factum of torture on

demand of dowry and that torture was duly reported to his

father. It is further submitted that on behalf of the

petitioner several efforts were made to patch up the

differences. Accordingly Mr. Sengupta assailed the

judgement impugned.

8. In opposition to that, Ld. Advocate, Mr. Sanjiv Seth,

appearing on behalf of the opposite party has referred to the

evidence of the witnesses and submitted that petitioner

failed to prove the torture on demand of money for

construction of 2nd floor of her in laws house. In this regard,

he has referred to evidence of Petitioner (PW1). By referring

to the evidence of PW2 (father of the petitioner) Mr. Seth has

contended that no steps were taken by the petitioner to

return to her in laws house in spite of proposal made by the

petitioner/husband. Mr. Seth also referred to the affidavit

sworn in by the petitioner in the Matrimonial Suit under

Section 9 of the Hindu Marriage Act, filed at the instance of

the petitioner/husband. Accordingly, Mr. Seth supported

the judgment impugned.

9. Admittedly, from 23.11.1999 (date of marriage) till

10.03.2014 (date of leaving her matrimonial home) i.e.

during for about 14 years no complaint was made either

before police or before any competent authority while she

was subjected to torture on demand of money since

marriage . It is not explained in this case that what

prevented the petitioner and her relatives including parents

to make any complaint either before the police or before any

authority. The reason of torture assigned by the petitioner

in the application in paragraph 3 of the application under

Section 125 of CrPC was for construction of 1st floor of the

in laws house but in her evidence petitioner has stated as

follows:-

"After my marriage I saw that my matrimonial house is an

incomplete two storied building. Two rooms on first floor,

two rooms on the ground floor. After marriage, I used to

stay at first floor"

10. Therefore, allegation of the reason of torture has

become doubtful.

11. From the evidence of petitioner/wife (PW1), it appears

that after filing the affidavit they did not stay together as her

husband did not come to bring her. She also admitted that

after withdrawal of cases her husband came to her parental

house and stayed there for four/five days and during that

period her husband asked her to come to his house.

12. PW2 (father of the petitioner) testified as follows:-

"My daughter is now residing at my house along with her

daughter since March 2014."

13. PW2 has further deposed as below: - "my daughter was

not taken back to her matrimonial home. I made

preparation to send my daughter to her matrimonial home. I

did not take my daughter to her matrimonial home. My

younger daughter and her husband pursued over this

matter."

14. PW2 has further deposed as follows:-:

"My daughter did not take any steps to return back to the

matrimonial home."

15. Aforesaid evaluation of evidence and other facts

revealed from the record boil down to the following decisive

factors:-

15.1. Allegation of torture and driving her out of

matrimonial home was never reported to any authority let

alone jurisdictional police station.

15.2. Opposite party/wife filed one affidavit in the MAT Suit

under Section 9 of the Hindu Marriage Act, filed by the

petitioner/husband, admitting the reason of separate

leaving due to misunderstanding.

15.3. In the evidence, opposite party/wife admitted that the

petitioner/husband had been to her father's house for

taking her back.

15.4. PW2 (father of the petitioner) testified that his

daughter did not take any steps to return back to the

matrimonial home.

15.5 PW2 testified that petitioner had been residing in his

house since March, 2014. Therefore, question of returning

back to her matrimonial home does not arise.

15.6. PW1 (petitioner/wife) specially testified that after

marriage she used to reside in the 1st floor of her in laws

house along with her husband. So question of demanding

money for construction of 1st floor does not arise

16. From the aforesaid discussion, I am unable to come to

any conclusion that the petitioner was subjected to torture

on demand of money for constructing 1st floor of her in laws

house and ultimately she was driven out in the year 2014.

17. For the reason, I am unable to interfere with impugned

judgment and order dated 25.07.2018 passed by Ld.

Additional Sessions Judge, Fast Track Court No. 1, Howrah

in connection with criminal revision no. 100 of 2017.

18. The revision application being C.R.R No. 2911 of 2018

stands dismissed.

19. All parties to this revisional application shall act on the

server copy of this order downloaded from the official

website of this Court.

20. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

[BIBHAS RANJAN DE, J.]