Gita Das @ Sangita Das Vs. Tapan Das – Maintenance

Kolkata High Court

Gita Das @ Sangita Das vs Tapas Das And Anr. on 8/11/2002

JUDGMENT

Malay Kumar Basu, J.

   1. This revisional application is directed against the judgment and
   order dated 12.2.2002 passed by the learned S.D.J.M. Serampore in Misc.
   Case No. 297/99 (T.R. 52/2000) under Section 125 Cr.P.C. The petitioner
   Sm. Gita Das filed a petition under Section 125 Cr.P.C. before the
   Court below on the allegations as follows. She was the married wife of    the O.P. Sri Tapas Kr. Das who married her according to Hindu Rites on
   11th July, 1995 and since after the marriage the petitioner went on
   living with the O.P. as husband-wife and out of that wedlock one male
   child was born. But the O.P. was a cruel man and he started torturing
   to the petitioner both physically and mentally and also by stopping
   supply of food to her and compelling her to beg. Ultimately on 23rd
   June, 1999 she was driven out from her matrimonial home along with her
   baby by the O.P. and at that time her wearing apparels also were
   snatched away. Moreover, she was compelled by the O.P. to write a chit
   and wrote on it that she was leaving this house as there was no other
   alternative left to her for saving her and her child’s life. After
   being so driven out she took shelter in a neighbouring house and begged
   a peace of cloth and also a sum of Rs. 50/- from that neighbour and on
   the next morning she took shelter at Ramkrishna Mission house at
   Barrackpur. From there she informed her parents over phone for taking
   her and her child from that place and on the basis of such information
   her elder sister came there and took them to her parents house at
   Boral. Later, she received a summons from the Court of a divorce suit
   filed by her husband and she then went to her husband’s house to
   persuade him to withdraw, the said suit but at that time she was
   assaulted by her husband and her ‘bhasur’. She then lodged a complaint
   before the local police station and a criminal case under Section 498A
   IPC was started against the husband and his elder brother and in that
   suit police submitted chargesheet against the accused persons. In
   connection with the said divorce suit she appeared before the Court of
   District Judge, Hooghly (MAT Suit No. 411/99) and contested the same
   and filed a petition for alimony pendente lite under Section 24 of the
   Hindu Marriage Act and the ld. Judge awarded interim maintenance on
   1.8.2000 at the rate of Rs. 800/- per month for herself and Rs. 400/-
   per month for the child and also awarded a sum of Rs. 1000/- at lump
   towards litigation cost. The O.P. husband is an employee of Birla
   Technical Services and draws a salary of Rs. 7000/- per month and
   besides that he has also landed properties and he has let out 12
   (twelve) shop rooms and has been running a business of building
   materials at Serampore. The petitioner-wife under all these
   circumstances filed this petition under Section 125 Cr.P.C. claiming
   maintenance of Rs. 1500/- for herself and also Rs. 1500/-for her son.
   The ld. Magistrate by the impugned order has awarded a sum of Rs.
   1000/- only by way of maintenance of the child but he has refused to
   award any maintenance in favour of herself. Since she has no
   independent source of income and has been passing her days with great
   hardship being a dependent of her father she has been aggrieved by that
   order of the ld. Magistrate she has preferred this revisional
   application challenging that order as erroneous and unjustified.

   2. The point for determination in this revisional application is
   whether the impugned findings of the ld. Magistrate are illegal,
   improper or unjustified. In order to render herself as entitled to get
   maintenance from the husband the petitioner-wife has to prove that (1)
   she is the legally married wife, (2) the husband has neglected or
   refused to maintain her, (3) she has no independent source of income
   and (4) the husband has sufficient means to maintain her. In the
   present case the petitioner is admittedly the legally married wife of
   the O.P. So the next question is whether the petitioner has been able
   to prove that the O.P.-husband has neglected or refused to maintain
   her. Undisputedly the petitioner-wife has been residing in the house of
   her father. It is her allegation that she used to be tortured by her
   husband both physically and mentally and ultimately she was driven out
   by them out of the matrimonial house along with her baby. On the other
   hand, the case of the O.P.-husband is that the petitioner herself left
   the matrimonial home of her own accord and there was no question of his
   having driven her out. The parties have led evidence before the Trial
   Court both oral and documentary. Let us see from such materials on
   record how far the petitioner has been able to substantiate her
   allegations. The petitioner-wife has stated in her examination-in-chief
   that on 23rd June, 1999 the O.P. -husband along with his mother
   assaulted her mercilessly and drove her out from their house along with
   her baby after snatching her wearing apparels and after this she
   entered into the house of one Kalipada and took a cloth and also a sum
   of Rs. 50/- from him and therefrom she went to the Ramkrishna Mission
   Institution at Barrackpur and took shelter there and stayed there for
   one day and then she informed parents over phone and after receipt of
   her information her elder sister came there and took her to her
   father’s house. It is curious to note that not a single person, neither
   her said elder sister nor her father or mother, nor the said neighbour
   named Kalipada nor any person of the said Ramkrishna Mission
   Institution is coming to corroborate her story in respect of such a
   vital event as alleged. What is more, the documentary evidence in this
   respect which has been filed before the Court also appears to falsify
   such a story narrated by her. Thus the Exhibit ‘H’ (plain copy of which
   has been shown to me by the ld. Advocate for the petitioner) which is a
   General Diary being G.D. Entry No. 1136 dt. 24.6.1999 of the Serampore
   P.S. lodged by her elder sister, Chhabi Karmakar shows a completely
   different story. Thus here it is alleged by the said Sm. Chhabi
   Karmakar, daughter of Sushil Karmakar of village – Boral along with her
   another sister named Baby Karmakar and still another person named Gopal
   Kr. Das of Baidyabati that her sister Sangita Das wife of Sri Tapas Das
   of Baidyabati had been found missing from her house on 23rd June, 1999
   at 10-00 a.m. along with a child in her lap and she did not return as
   yet on that date, that is, 24tb June, 1999. This statement of the elder
   sister of the petitioner thus gives a totally opposite version and
   belies her (P.W. 1’s) statement mentioned above on the margin of this
   exhibit (as pointed out by Mr. Goswami, the ld. Advocate of the O.P.
   and not disputed by the ld. Advocate of the petitioner) there is a note
   at the instance of the said Chhabi Karmakar to the effect that her
   sister (Sangita) had returned on 6.7.1999. Thus a question arises as to
   where this woman along with child remained during this period between
   24.6.1999 and 6.7.1999. The petitioner’s (P.W.1’s) claim that she was
   taken by her elder sister from the Ramkrishna Mission house of
   Barrackpur to her fathers house is rendered totally false. In her
   examination-in-chief she says that she has been residing in her
   father’s house since 23.6.1999 but few lines down she has said that she
   took shelter in the Ramkrishna Mission home at Barrackpur and stayed
   there for one day. The question is if on 23.6.1999 the occurrence took
   place as alleged and if she stayed in the R. K. Mission house for one
   day then how she could claim that she stayed in her father’s house on
   and from 23.6.1999, what is more surprising, in her cross-examination
   she has given still a third story. Thus at page 5 of her
   cross-examination she says that on 23.6.1999 O.P. drove her out from
   his house and she took shelter at Barrackpur Ramkrishna Mission and
   stayed there for 6/7 days and thereafter her elder sister came there
   and took her to her father’s house. This statement is contradictory to
   the statement made in her petition as well as in the
   examination-in-chief. It is thus clear that she is giving different
   versions at different times and it goes without saying that thereby her
   veracity and credibility is put to serious question. She further says
   in her cross-examination that she has also said that she received
   treatment at the Walsh Hospital at Serampore on 22.6.1999 when she had
   been assaulted by the O.P. and his mother. But in her petition it is
   her case that she had been assaulted on 23.6.1999 and not on 22.6.1999.
   She has also stated in her cross-examination (vide page 3 of her
   deposition) that due to assault she sustained several injuries on
   different parts of her body and she had medical certificate and X-ray
   report in her house and she did not submit these documents in
   connection with hearing of her petition. It is not understood how such
   vital documents were withheld. The presumption will be that had such
   documents been produced, they would have disproved her case. Another
   reason why the case of the petitioner sounds improbable is that she did
   not lodge any diary or FIR on the alleged incident of 23.6.1999
   although allegedly she was brutally assaulted and driven out after her
   wearing apparels were taken away. This is all the more unbelievable
   regard being had to her oral evidence that she lodged diaries with the
   police against her husband and in-laws on many occasions. A lady who
   knows that diaries are to be lodged with the police whenever any
   untoward incident or any instance of cruel treatment takes place,
   cannot be taken to have omitted to do this on this occasion due to
   innocence or ignorance to explain away such a lapse. In other words,
   when she was in the habit of lodging diaries with police on different
   occasions, the question arises as to how she can remain indifferent to
   such a major instance of assault or cruel behaviour perpetrated by the
   O.P., as alleged. So from the stand-point of probability also such a
   story is not acceptable as true. Then again, it is the further case of
   the petitioner that her husband has been living with another woman.
   Here again, curiously enough, she has not given the name of any such
   woman, nor she has lodged any complaint with either the police or
   before any Court and has left such an allegedly unlawful act of the
   O.P. untouched. This also renders her veracity questionable.

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   3. She has however filed a complaint under Section 498A I.P.C. with the
   police against the O.P. but that FIR was filed on 9.9.1999 while the
   said occurrence took place allegedly on 23.6.1999. Certainly this case
   cannot be taken to have been filed for this incident. The suggestion of
   the O.P. appears to be approaching nearer the truth that this case
   under Section 498A was a counterblast against the divorce suit that was
   filed by the husband in a Civil Court the notice of which she received
   around that time. In this connection the statement that was taken from
   his mouth in the cross-examination is worth being marked. It has been
   stated by him (the O.P.W-1) in his very C.E. that in order to compel
   him to withdraw the divorce suit the petitioner filed the criminal case
   against him under Section 498A IPC. It is conspicuous enough that such
   vital statements totally upsetting the cause of the remains
   unchallenged by way of further cross-examination and it can be observed
   that such an answer given by this O.P.W. himself to question put from
   the end of the petitioner herself and not being subjected to further
   cross-examination gives a go by to her case of torture.

   4. The O.P. has filed the letter (also called “chit of paper”) marked
   Exbt. ‘B’ to show his case that the petitioner left the matrimonial
   home of her own accord after leaving that chit which is to the effect
   that she was living the matrimonial house for a distant place. Inasmuch
   as, being a mental patient she was unable to adjust with the
   environment prevailing in the house of the O.P. and she requested the
   O.P. not to search for her. Mr. Srivastav, the ld. Counsel, for the
   petitioner has vehemently argued that this “chit” (Exbt. B) should not
   be relied upon, since the admission of this document was objected to
   and the same having not been shown to the petitioner in order to verify
   whether it was in her handwriting cannot be accepted as a genuine
   document. But the hand-writing of the contents of this letter has been
   formally proved by the O.P. himself who is no other than the husband of
   the writer and knows her hand-writing–a fact which has not been
   disputed in his C.E. and therefore I do not find any fault with the
   manner in which the formal proof of the document has been furnished and
   its reliability cannot be disputed for the further reason that in her
   petition the petitioner has admitted in clear language that she wrote a
   chit being compelled by her husband. But, curiously enough, there has
   been no attempt on the part of the petitioner to prove such allegation
   that her husband had compelled her to write such a letter and she had
   no other alternative but to write it in order to save the life of
   herself and the child.

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   5. Mr. Sribastav has strenuously argued that as per the established
   legal position the simple fact that the husband has filed a divorce
   suit should be taken as enough to show that the wife had been compelled
   under the circumstances created by the husband to leave her matrimonial
   home. In support of this contention Mr. Sribastav relies upon certain
   decisions as follows:

     (1) 1987 Cr.L.J. 1815 (Girish Ch, v. Sushila Bai) wherein it has
     been held that when the husband has filed an application for
     divorce, the wife must be held to have justified ground for her
     refusal to live with the husband and entitled to claim maintenance
     under Section 125. But on a careful perusal of the facts and
     circumstances of this judgment I find that they are completely
     different from those of our instant case. In the instant case, the
     petitioner-wife left the matrimonial home far earlier and, as the
     materials show, after the O.P. -husband failed to persuade her to
     come to her house, he filed the divorce suit on the ground of
     desertion. Therefore it would not be correct to say in the present
     case that the petitioner-wife left the matrimonial home due to the
     fact of filing of divorce suit. On the other hand as we have seen
     above, she left her father-in-law’s house on her own, unlike in the
     case under reference where originally the wife had been sent by the
     husband to her parent’s house. The second decision referred to Mr.
     Sribastav is the judgment reported in 1981 Cr.L.J. 267 (J. & K. High
     Court, F.B.) (Ajij Mohammed v. MST. Sayda Begum) wherein it has been
     held that remarriage of a husband ipso facto constitutes a
     sufficient cause for his wife’s refusal to live with him, entitling
     her to claim separate maintenance from him and it is not necessary
     for the wife to further establish neglect or refusal on the part of
     the husband to maintain her. Certainly this ruling is not attracted
     to the facts and circumstances of the present case. As it has been
     shown above, there has been absolutely no proof of the mere
     allegation that the O.P. has been living with another woman. The
     next decision relied upon by Mr. Sribastav is 1991 Cr.L.J. 1932
     (Bom.) (Mustafa Samsuddin Sk. v. Samsad Begum Mustafa Sk. and Ors.)
     wherein it has been held that the conduct of the wife in initially
     leaving the matrimonial house is totally irrelevant in case the
     husband remarries after the wife leaves the matrimonial home and the
     Court must concentrate on facts and circumstances existing on the
     date of passing of the order. But, here again, the same observation
     has to be made, inasmuch as, the petitioner-wife has failed to
     establish her allegation that the O.P. has remarried or has been
     living with another woman. Mr. Sribastav has referred to certain
     other decisions, namely, (1) 1977 C.H.N. 228 and (2) All India
     Criminal Law Reporter 412 which are not found applicable to the
     present case.

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   6. In view of the foregoing reasons, it is found that the petitioner
   has totally failed to substantiate her allegation that the husband
   neglected or refused to maintain her but on the contrary, it has been
   established from the materials on record that she left her matrimonial
   home voluntarily of her own accord and since this important ingredient
   of Section 125 Cr.P.C. has not been proved, the question of her getting
   maintenance does not arise and under such circumstances it is needless
   to examine whether the other ingredients of the said section have been
   established or not.

   7. The decision of the Court below appears to be correct and need not
   be interfered with. In the result, therefore, the impugned judgment and
   order be affirmed and the revisional application be dismissed.

   8. Xerox certified copies, if applied for by any party, may be supplied
   as expeditiously as possible.

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