Lakshmi Paul vs State Of West Bengal & Anr
2023 Latest Caselaw 3765 Cal

                                    1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                      C.R.R. No. - 2187 of 2018
                               With
        IA No. CRAN 1 of 2018 (Old No. CRAN 2907 of 2018)

                       IN THE MATTER OF

                           Lakshmi Paul.
                              Vs.
                   State of West Bengal & Anr.

For the Petitioner           : Mr. Kollol Mondal, Adv.,
                               Mr. Krishan Ray, Adv.,
                               Mr. Souvik Das, Adv.,
                               Mr. Ayan Mondal, Adv.,
                               Mr. Samsher Ansari, Adv.


For the opposite Party        : Mr. Pratip Kumar Chatterjee, Adv.,



Judgment on                   : 09.06.2023



Subhendu Samanta, J.

This is an application u/s 401 read with Section 482 of

the Code of the Code of Criminal Procedure preferred against

an order dated 2nd July 2018 passed by the Learned Additional

Chief Judicial Magistrate Ghatal Paschim Medinipur, in

connection with Misc case no. 97 of 2012.

The brief fact of the case is that the present petitioner is

the wife of opposite party no. 2. Their marriage was solemnised

on 19th day of Falgoon 1404 BS, according to Hindu Rites and

Customs. Out of wedlock between the parties one female child

was born. The relationship between the parties became

strained thus they are living separately. The petitioner being

unable to maintain herself filed an application u/s 125 of

Cr.P.C before the jurisdictional magistrate praying for

maintenance for herself and for her minor daughter. The said

proceeding was disposed of by the Learned Magistrate in favour

of the petitioner on 28.02.2008 wherein the pay of

maintenance to the tune of Rs. 1000/- per month for the

petitioner and Rs. 6000/- per month for her minor daughter

was awarded. Being aggrieved by the said order the present

petitioner preferred a revision being no. CRR 1780 of 2008

before this Hon'ble Court. The said CRR was disposed by this

Hon'ble Court directing the opposite party no. 2 to pay

maintenance to the petitioner to the tune of Rs. 5000/- per

month and 3000/- per month to her minor daughter. The

opposite party no. 2 preferred an SLP before the Hon'ble Apex

Court against the said judgment. However the Hon'ble Apex

Court affirmed the order of the Hon'ble High Court.

The opposite party no. 2 deliberately did not pay the

regular maintenance as well as the arrear maintenance to the

petitioner consequently to met out the daily expenses for

herself and her minor daughter, the petitioner filed an

application u/s 127 Cr.P.C. before the Learned Magistrate for

enhancement of the amount to Rs. 15000/- and for herself and

Rs. 15000/- for her minor daughter. The opposite party no. 2

contested the proceeding before the Learned Magistrate and the

magistrate after hearing both the parties passed the impugned

order and directed the opposite party no. 2 to pay the

enhanced maintenance at the rate of Rs 6000/- per month for

the petitioner and Rs. 5000/- per month for her minor

daughter from the date of the order.

Hence this instant revision.

Learned Advocate for the petitioner submitted before this

court that the award passed by the Learned Magistrate in

response to the application u/s 127 Cr.P.C. is not justifiable

Learned Magistrate has failed to appreciate the facts and

circumstances of this case and come to an erroneous finding.

The Learned Magistrate did not consider the daily expenses of

the present petitioner and her minor daughter for which there

is a miscarriage of justice. The Learned Magistrate also did not

consider the evidence on record regarding the income of the

present opposite party no. 2 and passed an improper order. He

argued that the present opposite party no. 2 is a Life Insurance

Corporation Agent and regularly recieving a huge amount of

money as a commission. On the other hand present petitioner

has no independent income moreover she has liability to

maintain herself along with the daughter. At this juncture the

meagre amount of maintenance award by the Magistrate need

be set aside and enhanced.

Learned Advocate for the opposite party raise strong

objection and submitted before this court that he is a Life

Insurance Corporation Agent and earlier had received

commission from the Life Insurance Corporation. Nowadays,

after Covid 19 Pandemic his commission has been decreased,

he is not a CM Club Member at present and he is only earning

Rs. 147458/-(One lakh forty-seven thousand four hundred fifty

eight) per year as commission. He further pointed out that the

present opposite party no 2 has preferred a revision before the

Learned Sessions Judge, wherein the Learned Sessions Judge

has passed an order of directing the OP no. 2 to pay Rs. 5000/-

each from the date of filing of application u/s 127 Cr.P.C. . It is

further submission of the Learned Advocate for the opposite

party no. 2 that nowadays it is not possible for him to pay

maintenance to the present petitioner and her minor daughter

as he has no sufficient means.

Heard the Learned Advocates perused the materials on

record perused the certified copy of the impugned order. It

appears to me that the instant application for u/s 127 C.r.P.C

was preferred in the year 2012. It was disposed of in the year

2017. During the course of proceeding before the Learned

Magistrate some evidences were adduced of by the both the

parties and it has been proved that the present petitioner has

no sufficient means to maintain herself; it is also admitted fact

that the present OP no. 2 is a Life Insurance Corporation Agent

who used to earn more than Rs. 500000/- per year as

commission. It has been also pointed out before the Learned

Magistrate that before the time of final hearing i.e before the

year of 2017 the OP had more income.

The application u/s 127 Cr.P.C was preferred by the

destitute lady for enhancement of maintenance already

awarded u/s 125 Cr.P.C. the Original maintenance so far as

approved by the Hon'ble Supreme Court was Rs. 5000/- +

Rs.3000/- =Rs. 8000/- in all. Admittedly at the year of 2012

the opposite party no 2 had more income than he was earning

in the year 2017. Learned Magistrate has assessed the monthly

income of OP no. 2 as not less than Rs. 44000/- per month at

the time of final hearing. So considering the entire aspect and

considering the materials on record it appears to me that the

order of enhanced maintenance passed by the Learned

Magistrate is not proper. The evidence of OPW 2 before the

Learned Magistrate signifies that the present OP no. 2 was not

earning less than Rs. 60000/- per month. Considering the

circumstances I think it necessary to modify the award passed

by the Learned Magistrate.

The amount of maintenance passed by the Magistrate

appears to be meagre one. It is not possible for a person to

carry on his livelihood by such amount.

The Learned Magistrate also committed error by giving the

effect of the award from the date of order. According to the

direction of Hon'ble Apex Court in Rajnish Vs. Neha. The order

of maintenance should be given effect from the date of the

filling of the application.

Hence, I find merit to entertain the petitioner. The CRR is

allowed. The impugned order is hereby modified to the effect

that the enhanced amount of maintenance shall be Rs.

10,000/- each per month. The OP no. 2 is directed to pay the

enhanced maintenance to the petitioner and her minor

daughter to the tune of Rs. 10000/-each per month from the

date of filing of application u/s 127 Cr.P.C.

Supplementary affidavit filed on behalf of the parties are

taken on record.

Supplementary affidavit filed on behalf of opposite party

no. 2 showing his recent income cannot be taken into

consideration at this stage as the proper redress is available

with the jurisdictional Magistrate.

The supplementary affidavit on behalf of the petitioner is

also considered and the order passed by the Learned Additional

Sessions Judge in Criminal Revision- 371 of 2018 by virtue of

the impugned order would be remain sub- silentio.

CRR is disposed of.

The OP 2 is directed to pay on enhanced monthly

maintenance within 7 days of the each month and the arrears

of maintenance should be paid within 02 months. Failing

which the petitioner shall have liberty to recover the same

through execution.

Connected applications if pending, are also disposed of.

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept. on

usual terms and conditions.

(Subhendu Samanta, J.)