Calcutta High Court (Appellete Side)
Swadesh Kumar Paul vs The State Of West Bengal & Anr on 29 September, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
Justice Bibhas Ranjan De
C.R.R. 3707 of 2017
Swadesh Kumar Paul.
Vs.
The State of West Bengal & Anr.
For the Petitioners :Mr. Ranajit Roy, Adv.
Ms. Sushmita Ghosh, Adv.
Mr. Parashar Baidya, Adv.
For the opposite party no. 2 : Rajkrishna Mondal, Adv.
Mrs. Jayeta Mitra (Kaunda), Adv.
For the State :Mr. Narayan Prasad Agarwala, Adv.
Mr. Patick Bose, Adv.
Heard on :18.08.2023 & 18.09.2023
Judgment on :29th September, 2023
2
Bibhas Ranjan De, J.
1. Judgement and order dated 10th day of August, 2017, passed
by Ld. Additional Principal Judge, Family Court, Calcutta in
connection with Miscellaneous Case No. 73 of 2012 under
Section 125 of the Code of Criminal Procedure, 1973
(hereinafter referred to as CrPC) is under challenge in this
revisional application.
2. The application under Section 125 of CrPC was filed by the
opposite party no. 2/ wife contending, inter alia, that she got
married with petitioner on 10th day of July, 2008 under
Special Marriage Act, 1954 and started their conjugal life as
husband and wife. At her matrimonial home she was forced to
reside in a humid stuffy and unhygienic room alone and her
husband never share the bed with her. Her mother in-law
used to misbehave with her and maid servant was
permanently released with intent to get her absorbed in doing
all household works as maid servant. Above all, her husband
returned home after consuming alcohol and abused her in
filthy words without any reason and thereby she was
subjected to constant physical and mental torture by the
petitioner and his mother. Ultimately, she was driven out from
her in-laws house and she had to take shelter in her parental
house and manage herself with help of her married sister and
other relatives. Petitioner/ husband never paid any single
farthing to her towards maintenance in spite of having income
of Rs. 40,000/- per month.
3. In opposition to that petitioner/husband contested the said
application under Section 125 of CrPC by filing a written
objection contending, inter alia, that he has no income and
denied all the allegations of torture upon his wife who deserted
on her own just after five days of their marriage.
4. In support of the application under Section 125 of CrPC,
opposite party no. 2/ wife examined three witnesses namely
opposite party herself as PW1, one Gopal Chandra Ghosh as
PW2 and her married sister Smt. Soma Nath as PW3. On the
contrary, petitioner/husband examined himself as OPW1 and
his brother in-law Amit Kumar Pal as OPW2.
5. Ld. Additional Principal Judge, after evaluating the evidence
on record, recorded an order of maintenance to the tune of Rs.
10,000/- with direction upon petitioner/husband to pay the
same within 15 day of each succeeding month.
6. Ld. Advocate, Mr. Ranajit Roy, appearing on behalf of the
petitioner/husband has argued that the Ld. Judge failed to
consider that the application under Section 125 of CrPC was
filed by opposite party 2 (wife) on 18.10.2012 after 4 years
from the date when she voluntarily left her matrimonial home.
7. Mr. Roy contended that allowance of such prayer is on
irrelevant considerations as the parameters relied upon by the
Ld. Judge, while partially allowing the prayer of opposite party
2 (wife) are not in accordance with law.
8. It is further submitted that the opposite party no. 2 (wife) had
left her matrimonial house at her own volition after just 5 days
from the date of her marriage with all her belongings, jewellery
and other articles and for no willful latches on the part of
either her husband(petitioner herein) or any of his relatives. It
is further evident from the cross-examination of opposite party
no. 2 that she refused to go back to her matrimonial house
citing vague reasons. Under such circumstances, she is not
entitled to any maintenance whatsoever.
9. Mr. Roy has further contended that from the depositions of the
witnesses it has been established that opposite party no. 2
(wife) was earning her livelihood from a job at a private sector
having an income of Rs. 10,000/- per month. Thus, opposite
party 2 (wife) cannot fall within the class of wives, who are
unable to maintain themselves, and thereby not entitled to any
maintenance.
10. It is further argued that, Ld. Judge's, fixation of quantum
of maintenance is out an out disproportionate to the
petitioner's (husband) prevailing means. In addition to that the
opposite party 2 could not give a specific reference to any
jewellery shop as claimed by her but tried to make vague
claims to misguide the Learned Court, when she admitted
during her cross- examination that she is unable to produce
any document in support of her contention regarding
ownership of the said shops by her husband (petitioner).
11. Next, it is submitted that petitioner and his brother in-
law had denied having any income from any source
whatsoever and were unemployed. This fact remained
unshaken during the extensive cross-examination also. In
such premise the amount of maintenance fixed by the Ld.
Judge, is too high for the petitioner's standard and thus the
Ld. Judge in passing the impugned order had been totally
oblivious of the well settled principle of law.
12. Per contra, Ld. Advocate, Mr. Rajkrishna Mondal,
appearing on behalf of the opposite party no. 2 /wife has
referred to evidence of OPW2 and contended that reason of
leaving of matrimonial home has been clarified by testifying
that opposite party no. 2 /wife faced problem in staying at her
in-laws house. He has further referred to the evidence of
opposite party no. 2 with regard to no effort on the part of the
petitioner/ husband to take his wife back to his house.
13. Mr. Mondal further refers to the observation of the Ld.
Judge, regarding failure of proving sufficient means of the
opposite party 2 /wife earning Rs. 10,000/- per month by
working in a private company.
Decision:-
14. It is not disputed that both the parties to this revisional
application are a legally married couple.
Whether op no.2/wife willfully deserted
petitioner/husband without any sufficient reason
15. In the application under Section 125 of the CrPC
opposite party 2/wife alleged that she could reside in her
matrimonial home only for a few days and during that period
she was subjected to mental torture at the behest of her
husband and mother in-law. On the contrary,
petitioner/husband denied the allegation in his written
objection alleging inter alia that his wife/ opposite party no. 2
left her matrimonial home without any sufficient reasons that
too within just 5 days of marriage.
16. In the evidence opposite party 2 /wife (PW1) corroborated
the contentions made in the petition under Section 125 of
CrPC and petitioner/husband in his evidence denied all
allegation lebelled against him but OPW2 (brother in-law of
petitioner) has specifically testified in his cross-examination as
quoted below:-" The petitioner/wife faced problems to stay
at her in- laws' house. Thus, she left the house of
O.P./husband."
17. Therefore, it cannot even be presumed that opposite
party no. 2/wife willfully deserted her husband/petitioner
without any sufficient reasons.
Whether Opposite party 2/wife has sufficient means to
maintain herself
18. Opposite party no. 2 /wife in her application under
Section 125 CrPC has stated that she has no sufficient means
to maintain herself. But in written objection
petitioner/husband alleged that opposite party no. 2 /wife
being an employee of one private company earned not less
than Rs. 10,000/-per month. On scrutiny of the evidence I do
not find any credible evidence in the form of documents to
substantiate the sufficient means of the opposite party 2/wife.
Therefore, failure on the part of the petitioner/husband to
produce any document in support of income of opposite party
no. 2/wife further buttressed the contention of the opposite
party no. 2/wife that she had no sufficient means to maintain
herself.
Whether petitioner/husband has sufficient income to
maintain his wife/Opposite party 2
19. Petitioner/husband in written objection to the petition
under Section 125 of the CrPC disclosed that he is totally
unemployed having no fixed income though opposite party
2/wife contended in application under Section 125 of CrPC
that her husband/petitioner is owner of at least three shops
and he earns from his own gold ornament shop and from the
rent of other two shops and thereby earned Rs. 40,000/- per
month.
20. It is true that during evidence opposite party 2/wife
could not produce any single scrap of paper showing either
ownership of those shops or income therefrom. But, from the
evidence of petitioner (OPW1) it is found that he has stated in
his cross-examination as follows:- " I am presently fully
unemployed. I only do the household works in others'
house to earn my livelihood. I am an able bodied person
but my petitioner/wife is sick and ill." Again brother in-law
of petitioner herein was examined as OPW2 who stated in his
cross examination as quoted below: " My brother in-law/ Op
is presently fully unemployed. OP is fully dependent on
the income of his other brothers." He further testified -"It
is fact that my Op/brother in-law is both mentally and
physically fit and he is an able-bodied person."
21. Aforesaid contradictory evidence of O.P.W 1 and O.P.W 2
has created a reasonable doubt in the mind of this Court as to
the income/sufficient means of petitioner/husband. The
evidence of O.P.W 1/husband cannot suggest any
presumption of no income. If it is so, petitioner/husband is
duty bound to disclose his actual income before the Court.
Suppression of income can be a vital tool to come to a
conclusion that petitioner/husband being an able-bodied
person has sufficient income to maintain his wife/opposite
party 2.
22. Regard being had to the above as well as growing
inflation of price, I am unable to interfere with the order of
maintenance and quantum thereof passed by Ld. Additional
Principal Judge, Family Court, Calcutta in connection with
Miscellaneous Case No. 73 of 2012 under Section 125 of the
Code of Criminal Procedure.
23. Thus, the revision application being no. CRR 3707 of
2017 stands dismissed.
24. All parties to this revisional application shall act on the
server copy of this order downloaded from the official website
of this Court.
25. 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.]
