Calcutta High Court (Appellete Side)

Bhaskar Sehanabish vs The State Of West Bengal & Ors on 15 March, 2023

IN THE HIGH COURT AT CALCUTTA

(Criminal Revisional Jurisdiction)

APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)

CRR 32 of 2019

Bhaskar Sehanabish

The State of West Bengal & Ors.

For the Petitioner                 : Mr. Suman Sehanabis,
                                     Ms. Atulya Sinha.



For the State                      : None.



For the Opposite Party             : None.




Heard on                           : 13.02.2023

Judgment on                        : 15.03.2023



Shampa Dutt (Paul), J.:

The present revision has been preferred against the Judgment

and Order dated 15th March, 2018 passed by the Learned Additional

Chief Judicial Magistrate in Misc. Case No. 17 of 2015 filed by the

opposite party No. 2 i.e. the wife under Section 127 of the Code of

Criminal Procedure.

The petitioner's case is that pursuant to an application under

Section 125 of the Code of Criminal Procedure of the wife, the opposite

party No. 2 and her son, a maintenance proceeding being M.R. 76 of

2009 was started before the Learned Court of Additional Chief Judicial

Magistrate, Mathabhanga.

The petitioner being the opposite party in the said proceeding

being Misc. Case No. 76 of 2009 filed his written objection denying all

the material allegations and also specifically contending that not the

petitioner and his family members but the wife i.e. the opposite party

No. 2 herein used to misbehave with the petitioner and his family

members since she was not willing to stay jointly at her matrimonial

house.

On 30th May, 2012 the Learned Additional Chief Judicial

Magistrate, Mathabhanga passed a Judgment/Order directing the

petitioner to pay maintenance allowance of Rs. 5,000/- each to the

opposite party No. 2 and her son, total Rs. 10,000/- from the date of

order.

Being aggrieved by and dissatisfied with the above Judgment

and Order dated 30th May, 2012, the petitioner filed a revisional

application before the Learned Additional Sessions Judge (newly

created) Cooch Behar being Criminal Revision No. 43 of 2012 whereby

the Learned Additional Sessions Judge (newly created) Cooch Behar

modified the order directing the petitioner to pay Rs. 4,000/- per month

to the opposite party No. 2 and Rs. 5,000/- to her son.

The opposite party No. 2 and 3 in the meantime filed an

application before the Learned Additional Chief Magistrate,

Mathabhanga under Section 127 of the code of Criminal Procedure

being M.R. 17 of 2015 for enhancement of the maintenance amount.

On 15th March, 2018, the Learned Additional Chief Judicial

Magistrate, Mathabhanga passed the judgment and order in M.R. 17 of

2015 enhancing the maintenance amount to Rs. 5,000/- per month

for the opposite party No. 1 i.e. the wife and Rs. 7,000/- per month

to the opposite party No. 3 i.e. the minor son of the petitioner

(total Rs. 12,000/- per month) from the date of passing of the

order.

It is further submitted that the opposite party No. 2 was/is

working as School Teacher having monthly income of Rs. 10,000/- per

month with huge additional income from private tuition.

On 5th April, 2016 the Learned Additional Chief Judicial

Magistrate, Mathabhanga, Cooch Behar by the Judgment and Order

in Misc D.V. Case 76 of 2012 directed the petitioner to pay a

further sum of Rs. 3,000/- along with the maintenance of Rs.

10,000/- (modified in appeal to Rs. 4,000+ 5,000= 9,000/-) already

ordered in maintenance proceeding being M. R. Case No. 76 of

2009 by the Learned Additional Chief Judicial Magistrate,

Mathabhanga, Cooch Behar on 30th May, 2012.

Being aggrieved by and dissatisfied with the Judgment/Order

dated 5th April, 2016 passed by the Learned Additional Chief Judicial

Magistrate, Mathabhanga, Cooch Behar in Misc. D.V. Case No. 76 of

2012, the petitioner preferred an appeal before the Learned Additional

District Sessions Judge, Cooch Behar being Criminal Appeal No. 15 of

2016 under Section 29 of the Protection of Women from Domestic

Violence Act, 2005. The opposite party No. 2 herein also preferred an

appeal before the Learned Additional District and Sessions Judge,

Cooch Behar being Criminal Appeal No. 13 of 2016 challenging the

same Judgment and Order of Learned Additional Chief Judicial

Magistrate, Mathabhanga. On 18th July, 2018 the Learned Additional

Sessions Judge, 3rd Court, Cooch Behar dismissed the appeal of the

petitioner being Criminal Appeal No. 15 of 2016 and allowed the

Criminal Appeal being No. 13 of 2016 with a direction to provide further

monetary relief of Rs. 7,000/- per month to the opposite party no. 2 and

her son and to secure same level of alternate accommodation for the

wife i.e. the opposite party No. 2 herein as enjoyed by her in the shared

household or to pay rent for the same if the circumstances so required.

That being aggrieved by and dissatisfied with the above

Judgments and Orders passed on 18th July, 2018 passed in both the

appeals being Criminal Appeal No. 16 of 2016 as well as in Criminal

Appeal No. 13 of 2016, the petitioner has already filed two revisional

applications before this Hon'ble Court being C.R.R. No. 2779 of 2018

and C.R.R. No. 2778 of 2018 which are now pending before the Hon'ble

Court.

The petitioner has been now imposed with huge liability of

Rs. 12,000/- ordered in M.R. 17 of 2015 passed by the learned

Additional Chief Judicial Magistrate, Mathabhanga in the

application filed by the opposite party No. 2 under Section 127 of

the Code of Criminal Procedure alongwith Rs. 7,000/- ordered in

Criminal Appeal No. 15 of 2016 and Criminal Appeal No. 13 of 2016

under Section 29 of the Protection of Women from Domestic

Violence Act, 2005 alongwith a direction to pay rent for the

accommodation of the opposite party No. 2 wife. Total Rs. 19,000/-

plus rent for the alternative accommodation of wife/opposite party

no. 2.

It is submitted that the opposite party No. 2 herself was unable

to adjust in her matrimonial house and with her aged ailing parents-in-

law with the reason best known to her and constantly put pressure

upon the petitioner husband for a separate mess which the petitioner

being the only son did not agree leaving his parents alone. Result of

which the opposite Party No.2 left her matrimonial house in the month

of February, 2008 voluntarily and willfully. The petitioner tried his level

best to get his wife and son back but failed, only thereafter the

petitioner husband filed the Divorce suit and the opposite party after

lapse of 4 years lodged complaint against the petitioner under

Section 498 (A) of the Indian Penal Code under Section 12 of the

Protection of Women form Domestic Violence Act and the

maintenance proceeding as well.

The Learned Court while passing the impugned Judgment and

Order on 15th March, 2018 enhancing the maintenance amount erred

both in law and fact in failing to appreciate that the opposite party no. 2

is a School Teacher (Para-teacher) and earns sufficiently in as much as

the pay scale of a para teacher has already been increased than earlier.

The Learned Trial Court as well as the Learned Appellate Court

while passing their respective impugned judgments and orders erred

both in law and fact in failing to appreciate that already the petitioner is

paying the maintenance amount of Rs. 9,000/- to the opposite party

No. 2 and her son pursuant to the order of the Learned Additional

Sessions Judge (new created) Cooch Behar passed on 25th April, 2013

in Criminal Revision No. 43 of 2012 arising out of the judgment and

order dated 30th May, 2012 passed by the Learned Additional Chief

Judicial Magistrate, Mathabhanga in Misc. Case No. 76 of 2009 filed by

the wife, the opposite party No. 2 herein under Section 125 of the Code

of Criminal Procedure.

The petitioner also being a School teacher cannot bear the Rs.

4,000+Rs. 5,000+Rs. 3,000 (enhancement) + Rs. 7,000 (D.V. Act) huge

liability of Rs. 19,000/- in total (Rs. 12,000/- from the order passed in

the proceeding under Section 127 of the Code of Criminal Procedure

and Rs. 7,000/- from the order passed in Criminal Appeal No. 15 of

2016) along with the liability of paying rent for accommodation

particularly when the opposite party No. 2 is also a School Teacher.

The Judgment and Order dated 15th March, 2018 passed by the

Learned Additional Chief Judicial Magistrate in Misc. Case No. 17 of

2015 filed by the opposite party No. 2 and 3 herein under Section 127

of the Code of Criminal Procedure is otherwise bad in law and liable to

be set aside and/or quashed, otherwise the petitioner will suffer

irreparable loss and injury.

On perusal of the order of the Learned Magistrate, it is seen that

the Court held that the husband is an Assistant Teacher of a High

School and draws salary of Rs. 35,000/- to Rs. 36,000/- per month.

Thus the total amount of maintenance granted under various

enactments to the wife of the son is as follows:-

(i) Rs. 5,000+Rs. 5,000 (under Section 125 Cr.P.C.).

(ii) Reduced to Rs. 4,000+ Rs. 5,000/- on appeal.

(iii) Additional Rs. 3,000/- under Section 12 of D.V. Act.

(iv) Additional maintenance of Rs. 7,000/- on appeal and

counter appeal under Section 29 of the D.V. Act plus rent

for alternate accommodation.

(v) Enhancement under Section 127 Cr.P.C. of Rs. 4,000+Rs.

1,000 (Rs. 5,000) for wife and Rs. 5,000+Rs. 2,000 (Rs.

7,000) for the child.

Present total liability is Rs. 19,000/- as maintenance along

with rent for alternate accommodation/residence.

Section 127 of the Code of Criminal Procedure, lays down:-

"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 to 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."

The case of the petitioner/husband is that the wife is a para

teacher.

No affidavit of assets and liabilities was called for from the

parties, as per guidelines of the Supreme Court in Rajnesh vs Neha,

Criminal Appeal No. 730 of 2020, on 04.11.2020, while considering

the prayer for enhancement.

As such the under Judgment and Order dated 15th March, 2018

passed by the Learned Additional Chief Judicial Magistrate in Misc.

Case No. 17 of 2015 filed by the opposite party No. 2/wife under

Section 127 of the Code of Criminal Procedure being not in accordance

with law is liable to be set aside.

The financial status of parties, charges with passage of time,