Calcutta High Court (Appellete Side)
Doli Karmakar vs Swarup Karmakar & Anr on 10 September, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
CRR 1110 of 2018
Doli Karmakar
Vs.
Swarup Karmakar & anr.
For the Petitioner : Mr. Maloy Bhattacharya
Mr. Pradip Paul
Ms. Renesa Dey
For the Opposite Parties : Mr. Ranadeb Sengupta
Mr. Sachit Talukdar
Mr. Saurav Biswas
Heard On : 08.08.2024
Judgment on : 10.09.2024
Ajoy Kumar Mukherjee, J.
1. This application under section 482 of the Code of Criminal Procedure
has been directed against the order dated November 13th 2017 passed by
learned Additional Sessions Judge, 2nd Court Jhargram in Criminal Revision
No. 02 of 2016. By the impugned order, learned court below has affirmed
the judgment and order dated 23rd December, 2015 passed by learned
judicial Magistrate 1st Court, Jhargram in MR case No. 47 of 2012, by which
the trial court dismissed petitioners application under section 125 of the
Code of Criminal Procedure on contest.
2. Petitioner contended that the petitioner married opposite party no.1
on 12th December, 2009 and it is alleged by the petitioner that after two/
three months from the date of marriage, she was subjected to physical and
mental torture by the opposite party no. 1 and his family members.
3. It is further alleged by the petitioner that the opposite party no. 1 and
his family members demanded Rs. 100,000/- from the father of the
petitioner and when she could not meet that demand, She was driven out
from her matrimonial home on 23.12.2011 and the custody of the child was
forcefully kept with the petitioner no.1 and his family members. Petitioner
further submits that since then the petitioner is residing at her paternal
house at Shilda, Paschim Medinipur. She further stated that as she was not
provided any maintenance since December, 2011, she filed maintenance
application under section 125 of the Code of Criminal Procedure with a
prayer for payment of Rs. 12,000/- per month for her maintenance.
4. By a judgment and order dated 23.12.2015 the Trial Court dismissed
the said Misc. Case filed under section 125 Cr.P.C., on contest invoking his
jurisdiction under section 125(4) of the Cr.P.C., on the ground that she
failed to prove that she is living separately from the opposite party no.1 for
any satisfactory reason.
5. Being aggrieved and dissatisfied with the said judgment and order
dated 23rd December, 2015, the petitioner filed Criminal Revision being no.
02 of 2016 and learned Revisional Court below dismissed the said Revisional
Application on contest on 13 November, 2016 and thereby affirmed the
order of the Trial Court dated 23rd December, 2015 with the observation that
the order impugned does not suffer from any illegality/irregularity or
impropriety and therefore, is not liable to be interfered.
6. Being aggrieved by the said order of dismissal Mr. Bhattacharya,
learned counsel appearing on behalf of petitioner herein submits that
petitioner being a house wife tried her level best to resolve the family dispute
without making it public and she never attempted to lodge any police
complain against the mental and physical torture inflicted by opposite party
no.1 and his family members, only to save the prestige and dignity of the
family
7. It is further submitted on behalf of the petitioner that the courts below
failed to appreciate that the petitioner expressed her inability to get back her
minor ill daughter on the reason of financial crisis, as she herself is a
burden of her father, though every mother is willing to keep her child with
her. Accordingly the reason of rejection of the prayer for maintenance on the
grounds as stated in the impugned orders are not sustainable in the eye of
law. The courts below have also failed to appreciate that the petitioner was
ousted from her matrimonial home and for which there exist just and
reasonable cause for living separately. He further submits that the court
below did not consider that the object of section 125 of Cr.P.C. is meant to
achieve a social purpose and the main object is to prevent vagrancy and
destitution and provide speedy remedy for the supply of food, clothing and
shelter to the deserted wife. Accordingly petitioner has prayed for setting
aside the order impugned.
8. Mr. Sengupta learned counsel appearing on behalf of the opposite
party argued that the present Criminal Revisional application filed under
section 482 read with section 401 of the Code of Criminal Procedure is not
maintainable in the eye of law, in view of statutory bar provided under
section 397(3) of the Code.
9. Mr. Sengupta referring judgment in Rajan Kumar Machananda Vs.
The State of Karnataka reported in 1990 SCC (Cri) 537, argued further
that the bar of section 397(3) of the Code cannot be circumvented by
invoking inherent jurisdiction by the High Court. While passing the order
impugned Trial Court specifically observed that there were inconsistencies
in the pleading and the evidence deposed in the court by the petitioner/wife
and she failed to corroborate any of the facts pleaded by her in support of
her claim for maintenance. While passing the order impugned learned
Magistrate had also taken into account the non corroboration of the
allegations levelled by the petitioner quo the conduct of the opposite party
and his family members at the time the petitioner was expecting their child.
10. Mr. Sengupta further pointed out that the petitioner in her evidence
had stated that she does not intend to go back to her matrimonial home.
Learned Trial Court came to a clear finding that the petitioner had been
living separately without any sufficient reasons and as such section 125(4)
of the Code clearly attracts in the present context. He further argued that
the proceeding initiated by the petitioner herein under section 498A /34
against the opposite party/husband and his family members ended in
acquittal, which clearly establishes that the allegations of torture levelled
against the petitioner by the complainant stood disproved and establishes
the fact that petitioner left her matrimonial home without any sufficient
cause. He further pointed out that the conduct of the petitioner shows that
she never took any step to get custody of the minor child. It is further
submitted that the concurrent finding of the courts below does not suffer
from any illegality or impropriety and for which the orders impugned do not
call for interference by this court invoking jurisdiction either under section
482 or under section 401 of the Code of Criminal Procedure.
11. I have considered submissions made by both the parties.
12. The short point involved in the present context is whether courts
below were justified in refusing to grant maintenance to the petitioner on the
ground that petitioner's refusal to reside with her husband is not based on
sufficient reason. Both the Trial Court and the Revisional Court below has
come to a definite finding that the petitioner herein left her matrimonial
home, not as a result of any physical or mental torture nor she was driven
out therefrom and on the contrary she left her matrimonial home on her
own accord and she is residing separately without any reasonable excuse.
13. In this context the relevant portion of the observation of the Trial
court may be quoted. While dismissing petitioners application under section
125 Cr.P.C., the trial court held
"But quiet astonishingly petitioner failed to prove any positive effort from her
end for taking back of her child. Even she failed to bring any case showing
that she prayed redressal for infliction of torture upon her or getting back her
baby, in any other forum. In absence of such evidence the positive case of
opposite party that petitioner left him voluntarily gets a good presumption.
Section 125(4) Cr.P.C. provides that no wife shall be entitled to receive an
allowance for the maintenance..............without any sufficient reason she
refuses to live with her husband. Here in this case the most vital ingredient
of living with opposite party is present i.e. an inborn ill child. Here in this
case according to petitioner the reason of her separate staying is infliction of
martial torture upon her and driving out. Nothing has come to show that
petitioner agitated against infliction of marital torture upon her and driving
out in any other forum except this case. Her pleading lacks corroboration."
14. When the matter came up before the Revisional Court, learned judge
after scanning the evidence came to a finding that even in her deposition
petitioner stated that she is not willing to go with the opposite party and to
keep her child in her custody on the excuse that she is in hand to mouth
condition, though she has not alleged that she was not getting food and
shelter in her father's house and on the contrary she herself deposed that
she use to give private tuition. The relevant portion of the Revisional Courts
observation may be reproduced below:-
" I also consider the submission of the Ld. Advocate for the respondent
which has legs to stand that the pleadings of the revisionist clearly at
variance with her evidence. The reason behind alleged torture upon her
as mentioned in the petition is totally different from her evidence. The
revisionist even did not care to raise serious imputations against the
characters of her unmarried sister-in-laws alleging their involvement in
illicit relations protest against which is main cause behind the alleged
physical torture. But surprising enough she is totally silent in this regard
in her evidence.
So, I consider and hold that the Ld. Court below has rightly come to a
conclusion that the revisionist left her matrimonial house not as a result
of any physical torture or that she was not driven out but she left her
matrimonial house on her own accord and that she is residing separately
from her husband without any just and reasonable cause and as such
she is not entitled to get any awarded maintenance."
15. When both the fact finding courts after review of the evidence on
record came to the conclusion that the petitioner left her matrimonial house
on her own accord and she is residing separately from her husband without
any just and reasonable cause, the High Court would not be justified to
disturb such finding in exercise of its inherent power under section 482 of
the Code of Criminal Procedure unless it is shown that the order impugned
suffers from illegality or perversity. If the inherent power of the High Court is
used where it is not proper to exercise, it may become counter productive
and such power may loss its vitality. It is apparent from the concurrent
finding of the courts below that there is nothing to show that the said
orders are either illegal or irrational or suffering from procedural
impropriety. Section 125(4) applies to such cases in which wife without any
sufficient cause denies to live with her husband and in such cases she is
not entitled to get maintenance from her husband, unless she proves that
she was compelled to leave her matrimonial house. Thus, the merit of the
concurrent finding of the courts below as court of fact that the wife
petitioner is residing separately without any reasonable excuse and for
which she is not entitled to get maintenance, hardly requires interference
by the High Court in exercise of his power under section 482.
16. There is one more aspect in this matter. Section 397 (3) of the Code of
Criminal Procedure puts a bar in preferring second Revisional Application
before High Court when the same has been disposed of by the sessions
judge or the High Court previously. In Rajan Kumar Machnanda Vs. State
of Karnataka reported in 1990 Supp SCC 132, where a second Revisonal
Application was preferred in the garb of section 482 of the Code, it was
clearly held that merely by saying that the jurisdiction of the High Court for
exercise of its inherent power was being invoked, the statutory bar could not
have been overcome because every Revisional Application facing the bar of
section 397 (3) of the Code, could be lebelled as one under section 482 of the
code.
17. In Samita Saha Vs Mohan Saha and another, reported in 2010
SCC Online Cal 298, this High Court observed in this context that two
courts have concurrently found that the petitioner has failed to establish
his/her case by adducing cogent consistent and corroborative evidence and
material on record in respect of her claim, the High Court in its Revisional
jurisdiction cannot go into the question of fact in order to examine whether
concurrent findings of the Trial Court and Revisional Court are correct or
not. Of course in exceptional circumstances High Court can interfere on the
question of fact, if it is satisfied that the Trial Court or revisional court has
committed an error of law or procedure as a result of which there has been
serious miscarriage of justice and in such a compelling situation only High
Court in its inherent jurisdiction could interfere with the concurrent
findings of the Revisional court and Trial court.
18. In the present context as mentioned above there is nothing to show in
record from the side of the petitioner that any substantial injustice has
been done which can call for interference by this court, in case of
concurrent findings, in exercise of section 482 of the Code. On the contrary
it appears that to overcome the bar stipulated in section 397(3) of the Code
petitioner has preferred present application under section 482 of Cr.P.C.
19. In view of aforesaid discussion I am constrained to conclude that in
the present context I am convinced from the submissions made by the
parties that the essential legal requirements warranting invocation of
inherent jurisdiction of this court under section 482 of the code has not
been satisfied and as such the concurrent findings of the court below does
not call for interference specially when after careful consideration of entire
evidence and circumstances on record, both the courts have arrived at a
concurrent finding that the petitioner wife is not entitled to any maintenance
in view of her failure to prove reasonable and sufficient cause to reside
separately from her husband and her own daughter.
20. In such view of the matter CRR 1110 of 2018 stands dismissed.
Urgent photostat certified copy of this order, if applied for, be supplied to the
parties, on priority basis on compliance of all usual formalities.
(AJOY KUMAR MUKHERJEE, J.)
