Calcutta High Court (Appellete Side)

Sefali Khatun @ Bibi vs The State Of West Bengal & Anr on 31 July, 2023

                  IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                              Appellate Side

Present:

The Hon'ble Justice Shampa Dutt (Paul)

                            CRR 969 of 2019

                            Sefali Khatun @ Bibi

                                   Vs.
                      The State of West Bengal & Anr.



For the petitioner                   : Mr. Musharraf Alam Sk.,
                                       Mr. Sujoy Sarkar,
                                       Ms. Susmita Ghorai.

For the State                         : Mr. Narayan Prasad Agarwala,
                                        Mr. Pratick Bose.

For the Opposite Party No.2           : Mr. Angshuman Chakraborty,
                                        Mr. Shasanka Shekhar Saha.

Heard on                              : 12.07.2023

Judgment on                           : 31.07.2023



Shampa Dutt (Paul), J.:

1.

The present revision has been preferred against an order dated

27.02.2019 passed by the learned court of Additional Session Judge,

Chanchal, Malda in Criminal Revision No.03 of 2018 arising out of

Maintenance Case No.146M of 2012 vide order dated 6.10.2016 passed by

the learned Additional Chief Judicial Magistrate, Chanchal, Malda.

2. The petitioner's case is that on 27.02.2019, the learned Additional

Sessions Judge, Chanchal, Malda passed a Judgment and Order in

Criminal Revision Case No.03 of 2018 by modifying the Judgment and

Order dated 6.10.2016 passed by the learned Additional Chief Judicial

Magistrate, Chanchal, Malda, in Maintenance case No.146 of 2012 by

directing the petitioner/opposite party no.1 herein to pay an amount of

Rs.4,000/- per month instead of Rs. 6000/- as directed by the Magistrate.

3. The petitioner's case is that she filed an application under Section

125 of Cr.P.C. before the learned court of Chief Judicial Magistrate, Malda

being Case No.146M/2012 stating inter alia that her marriage was

solemnized on 12.10.2003 as per Muslim rights and customs with the

opposite party no.1. She then lived in her matrimonial home and after some

time her husband and other in laws started torture with demand of

additional dowry. Thereafter the opposite party no.1 married another

lady named Nagera Bibi and then the husband with other in laws drove

her out from her matrimonial home on 13.10.2012. A case under Section

498A of Cr.P.C. is pending and the petitioner took shelter in her parent's

house. The petitioner has no independent income of her own nor any house

and the opposite party no.1 never provided her any maintenance.

4. It is submitted that her husband is an able bodied person and he has

his own house, 15 bighas of landed properties, a tank where pisciculture is

carried out, a Medicine shop and also cultivates "Makhana". The total

income of her husband is Rs.30,000/- per month. The petitioner thus prays

for maintenance of Rs.10,000/- per month.

5. The opposite party no.1 has denied the allegations and stated he is a

day labour earning Rs.100/- per day.

6. On 28.02.2018 the opposite party no.1 filed a criminal revision being

no. 03 of 2018 before the learned court of Additional Sessions Judge,

Chanchal, Malda.

7. The learned Additional Sessions Judge, Chanchal, Malda though did

not find any reason to modify the order of the learned ACJM, Chanchal

passed in case No.146M/2012 but by modifying the said judgment held that

"The learned court did not commit any error in sketching out the conclusion

that the petitioner has got the means to maintain his wife."

8. Mr. Musharraf Alam Sk. learned counsel for the petitioner has

submitted that the judgment and order passed on 27.02.2019 in Criminal

Revision Case No.03/2018 is not in accordance with law, as the learned

Judge passed the judgment and order arbitrarily without expressing any

reasonable ground to modify the judgment and order passed by the learned

ACJM, Chanchal, Malda in Case No.146M/2010 and thus the judgment and

order dated 27.02.2019 is required to be stayed/set aside.

9. Mr. N. P. Agarwala, learned counsel for the State is present.

10. Mr. Angshuman Chakraborty, learned counsel for the opposite

party no.2 has submitted that the Sessions court has taken the total

circumstances into consideration while passing the order and thus the

order under revision being in accordance with law should be affirmed.

11. From the materials on record it appears that the learned ACJM,

Chanchal, Malda passed an order dated 06.10.2016, finally disposing the

Misc case under Section 125 of the Cr.P.C. The relevant portion of the order

is:-

Case No. 146M/2012 Dated 06.10.2016 ORDERED

"That the petition under Section 125 of the Cr.P.C is allowed on contest.

The opposite party namely Manjur Alam is directed to pay a maintenance allowance to the tune of Rs.6,000/-(Rupees Six Thousand) per mensem to the petitioner namely Shefali Bibi within the fifteenth day of every succeeding month. This order is effective from the date of this order."

Sd/-

A.C.J.M., Chanchal, Malda

12. On revision, the learned Additional Sessions Judge, Chanchal, Malda

in Criminal Revision No.03 of 2018 on 27.02.2019, on the finding that

the husband's income was not enough, modified the learned Magistrate

order as follows:-

Criminal Revision No. 03 of 2018 Dated 27.02.2019 ORDERED

"that the order dated 6.10.2016 as passed in Maintenance Case No.146M of 2012 by the Additional Chief Judicial Magistrate, Chanchal, Malda stands modified by directing the petitioner to pay an amount of Rs.4,000/- to the opposite party no.1 within the 7th of each calender month..............."

Sd/-

Additional Sessions Judge Chanchal, Malda

13. In the present case the parties were married on 12.10.2003. The

petitioner was allegedly driven out of her matrimonial home on 13.10.2012,

after nine (9) years of marriage, on their demand for dowry being not

fulfilled. They had no children.

14. The opposite party no.2 allegedly married another lady and then

the petitioner was driven out for want of more dowry. The order of

payment of maintenance is from the date of order. This is not in keeping

with the guidelines of the Supreme Court in Rajnesh vs. Neha (2021 (2)

SCC 324) wherein the court held:-

"VI Final Directions

In view of the foregoing discussion as contained in Part B - I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India : (a) Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

(ii) (ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) (iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

(b) Payment of Interim Maintenance

The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B - III of the judgment. 56 The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B - IV above.

(e) Enforcement / Execution of orders of maintenance

For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI."

15. The trial court granted Rs.6,000/- per month as maintenance, the

revisional court modified/reduced it to Rs.4,000/- per month.

16. A man who can marry for the second time (permitted under

personal law), is duty bound to maintain his 1st wife of 9 years. A

woman who has diligently, sincerely and lovingly put in so many

years of her life, in a relationship with the husband, deserves to be

looked after and cared for by him, as long as she needs/requires the

same.

17. Thus, keeping with the guidelines in Rajnesh vs. Neha (Supra) the

order of the Additional Sessions Judge, Chanchal, Malda passed in

Criminal Revision No. 03 of 2018 dated 27.02.2019 is set aside and the

order dated 06.10.2016 passed by the learned Additional Chief Judicial