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Calcutta HC: Wife deserting father Maintenance denied

Calcutta High Court

Partha Pratim Basak
vs
Arundhuti Basak on 7 June, 2007

Equivalent citations: 2007 (4) CHN 1032

Bench: P Sinha

JUDGMENT P.N. Sinha, J.

1. This revisional focus is destined conflicting a sequence antiquated 10.4.06 upheld by a schooled Additional Chief Judicial Magistrate (hereinafter called a ACJM), Barrackpore in tie with Case No. M/195 of 2005 thereby permitting a focus underneath Section 125 of a Cr. PC filed by a conflicting celebration (in brief a O.P.)/wife and extenuation her upkeep @ Rs. 1000/- per month for herself and @ Rs. 700/- per month for her teenager son and directing a postulant to compensate upkeep from a date of filing of a focus underneath Section 125 of a Cr. PC.

2. Mr. Jiban Ratan Chatterjee, a schooled Advocate for a postulant father submitted that a postulant does mechanism repair pursuit and his income is really meagre. On 18.4.05, a O. P./wife left a matrimonial home and went divided to her father’s house. Since afterwards a O.P. did not come behind to husband’s residence in annoy of steady efforts done by a father postulant to take her back. The schooled Magistrate who authorised a focus underneath Section 125 of Cr. PC did not conclude a justification and materials on record and unsuccessful to realize that a mother left matrimonial home on her possess yet any usually and scold cause. In perspective of supplies of Sub-section (4) of Section 125 of a Cr. PC, if a mother refuses to stay with a father yet any usually cause, she can't explain maintenance. The schooled Magistrate did not cruise a applicable supplies of Section 125(4) of a Cr. PC.

3. Mr. Chatterjee subsequent contended that a schooled Magistrate did not cruise a income of a husband. In a created conflict a father privately mentioned that operative as a mechanism repair use he earns frequency Rs. 3400/- per month. No ubiquitous diary or FIR was lodged by a O.P. during military hire concerning woe on her that she purported in her focus underneath Section 125 of a Cr. PC. The explain of woe for 4 years accordingly was not determined when there was no paper or request to uncover woe on her for a continual duration of 4 years. The schooled Magistrate yet scold justification hold that there are conditions in foster of a mother that requires extenuation of upkeep to her. Such an regard of a schooled Magistrate holding unlucky condition of a mother was yet any basement and justification and formed on presupposition and conjecture. On a contrary, a justification of a mother exhibit that after matrimony during slightest thrice she went to Puri with her father and was heading a happy conjugal life. On 18.4.05 she went divided to consanguine home with her father and thereafter, she did not come behind and yet any usually means she is staying during her father’s house. The mother is not entitled to explain any upkeep in perspective of a supplies of Section 125(4) of a Cr. PC and a sequence of a schooled Magistrate extenuation her upkeep should be set aside. In support of his row Mr. Chatterjee referred to a decisions in Gita Das @ Sangita Das v. Tapas Das reported in 2004(1) CHN 237 and Kumar Sankar Chakraborty v. Juthika Chakraborty reported in 1996(2) CLJ 502.

4. On a contrary, Ms. Dalia Roy, a schooled Advocate for a O.P. mother submitted that there were unlucky conditions in a matrimonial home for that a mother could not live with her father and had to leave a matrimonial home. The father did not take any information of her during a duration while she was staying in her father’s house. The father did not compensate any income or upkeep to a mother or to a teenager child and, this business is sufficient to uncover loosening on a partial of a husband-petitioner to say his mother and child. The justification of a father reveals that he has mobile phone, land phone and visiting card. Possession of mobile and land phone as good as duplicate visiting label clearly suggests that a income of a father is high and he has sufficient means to compensate upkeep to a mother and a child. The schooled Magistrate done no mistake by permitting a request of a O.P./wife underneath Section 125 of a Cr. PC and extenuation upkeep to her and her teenager son.

5. we have duly deliberate a submissions done by a schooled Advocates for a parties. Before entering into a consequence of a revisional application, we consider it judicious to mention, in short, a story or credentials of a box that was started on a basement of a focus underneath Section 125 of a Cr. PC filed by a O.P./wife. In her focus underneath Section 125 of a Cr. PC, a O.P./wife purported that she was married with a husband-petitioner on 31.1.01 and out of their nuptials a son was innate to them on 201.2.01. She was assaulted on several occasions and was tortured both physically and mentally by her father during a urging of mother-in-law and other in-laws. She was cramped in room and was not supposing with adequate food and cloth and was also not authorised to speak with anybody including her parents. At a time of matrimony it was disclosed that her father is a mechanism operative yet after a matrimony she learnt that her father was a category we ‘mistri’ for repair computer. She of march purported that, her father runs business underneath a name and character “Computer Home” during his residential address. She mentioned in a focus that her father earns Rs. 15,000/- per month and in annoy of sufficient income he was not looking after her. The father used to lapse home during night carrying wine and when she protested she was assaulted, and finally on 17.4.05 she was driven out of matrimonial home. She sensitive a matter to her father over write and on a following day during morning her relatives came to her matrimonial home and she went divided to her parental home with her parents. Her in-laws during that time misbehaved with her parents. She claimed upkeep @ Rs. 3,000/- for herself and Rs. 1,500/- per month for her teenager son.

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6. The husband-petitioner as a O.P. in a Court subsequent contested a matter by filing created show-cause wherein he denied all a element averments done in a petition underneath Section 125 of a Cr. PC. He inter alia contended that during a time of birth of their son all a medical losses were paid by him. He is a usually son of his relatives and his usually sister was already married elsewhere and in a matrimonial home his mother was receiving all kinds of adore and love from his parents. The mother used to revisit her parental home during slightest once in any fortnight as her relatives residence is during a stones chuck from his house. At slightest thrice i.e. on 20.2.01, 4.3.04 and 24.2.05 he visited Puri with his wife. He is conducting a pursuit of repair computers in his residence yet his income is frequency Rs. 3,500/- per month. The explain of entrance late during home and holding wine and assaulting her are fake and motivated. The relatives of a mother came to their residence on 18.4.05 and took divided his mother for some medical treatment. He requested his in-laws not to take divided his mother but, her relatives paid no mind and in annoy of his conflict took divided his mother with them and given afterwards his mother did not come behind to his house. Subsequently, he detected that a mother had taken divided all a ornaments and income that was kept in a almirah. It establishes that a averment done in a petition by a mother that she was driven out in singular cloth was false. He went to take behind his mother several times yet his mother did not come back. He and his relatives are still fervent to take behind his mother and son with full respect. He even sent a minute by their Advocate yet his mother was demure to compensate any honour to his requests. The mother is staying in her relatives residence yet any usually means and accordingly she is not entitled to explain any maintenance. He has done arrangement of opening reward of medicines for them including golden trust process with National Insurance Company Ltd. He took all a stairs for her preparation after a matrimony for that she got required gift to acquire and conduct herself.

7. On a basement of such focus and created conflict a schooled Magistrate available justification of both parties and by a impugned sequence antiquated 10.4.06 authorised a focus underneath Section 125 of a Cr. PC and postulated upkeep @ Rs. 1,000/- per month in foster of a mother and @ Rs. 700/- per month in foster of a son of a parties and done a upkeep sequence effective from a date of filing of a focus underneath Section 125 of a Cr. PC.

8. From justification of a parties a matrimony as good as birth of a son out of their nuptials is admitted. It was a explain of a mother that she was subjected to both earthy and mental woe in her matrimonial home on approach of some-more articles yet during matrimony articles were gifted. On 18.4.05 her father came to her in-laws residence to settle a brawl amicably yet her father and her other in-laws misbehaved with her father, and thereafter, gathering out her with her son in a singular cloth. On 17.4.05 her father attempted to kill her and she sensitive a matter to her father over phone from STD booth, and thereafter, on 18.4.05 her father came to her in-laws residence to settle a matter. Since 18.4.05 her father did not enquire about her and did not compensate her any income or maintenance. She settled in her justification that her father is a category we ‘mistri’ of computer.

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9. Her interrogate reveals that she settled in Court privately that she would never go to her in-laws house. She serve settled that she is not peaceful to stay with her father deliberation insecured condition in her in-laws house. Her justification reveals that she stayed in her matrimonial home for 4 years yet she never lodged any ubiquitous diary or FIR during military hire per earthy and mental woe on her during her stay in her matrimonial home. Her justification reveals that her father-in-law is above 70 years in age and her mother-in-law is above 60 years in age and, in matrimonial home besides father-in-law and mother-in-law, she and her father were residing. She certified that she went to Puri with her father thrice. At a time of smoothness of their son she went to her father’s residence usually one month before to birth of her son. In Court she even settled that she is not meddlesome to speak with her husband. She is not wakeful possibly her father has non-stop one mediclaim process for herself, for her son and started one word process with a National Insurance Company. Her justification reveals that she is a usually daughter of her father. She settled that on 18.4.05 her father stayed in her in-law’s for about one hour and she would not be means to furnish any request to uncover that her father was treated in a hospital.

10. The justification of P.W.2 Ashim Basak, father of P.W.1 Arundhuti Basak (the wife) reveals that after matrimony his daughter was happy for some time yet subsequently she was subjected to woe on some-more dowry and even she was assaulted. His justification reveals that concerning approach of dowry and purported woe on his daughter both physically and mentally no ubiquitous diary or FIR was lodged during military hire nor any censure box was filed in any Court. On 17.4.05 he was sensitive by his daughter over write about grave conditions in her matrimonial home and he came to her matrimonial home on 18.4.05. He settled that he was assaulted by O.P. and Ms relatives and he sensitive a matter during Belghoria PS. He settled that his son-in-law is a mechanism mechanic. Finally he settled that he is not peaceful to send his daughter to her husband’s house.

11. The father Partha Pratim Basak as OPW 1 in his justification denied all a allegations done by a mother and settled that his monthly income is not Rs. 15,000/- per month yet his monthly income varies from Rs. 2,000/- to Rs. 2,500/- per month. He is not a mechanism operative yet he works as a automechanic of repair computers. It is loyal that in interrogate he certified that he possess a mobile phone, land phone and visiting card. The residence mentioned in a visiting label is his residential address. He settled that in sequence to infer his income he did not record any request in Court and would not be means to furnish income memo or any return. He settled that he, his elder hermit went to his father-in-law’s residence to take his mother behind yet she did not come back. Another declare was examined as OPW 2 namely, Diptesh Kumar Basak who upheld a justification of OPW.1.

12. On a clever care of justification of both parties it is transparent that a mother is not during all peaceful to go to her husband’s house. From justification it is transparent that yet any usually means a O.P. mother is staying in her relatives house. The story of earthy and mental woe on her is not during all plausible and it is transparent that during her reign of stay in matrimonial home for 4 years she visited Puri with her father thrice, and that was, once before a birth of their child and twice after a birth of a child. If there was any approach of dowry and woe on her perfectionist dowry during her stay of 4 years in matrimonial home she would have really lodged complaint/FIR possibly in Court or during military station. Though in a focus underneath Section 125 of a Cr. PC she purported that she was not authorised to brew with any other or to go outward a matrimonial home, it is transparent from her justification that on 17.4.05 she talked with her father over write from one S.T.D. counter and for that reason on a subsequent day i.e. on 18.4.05 her father came to matrimonial home and afterward she went divided to her father’s house. It proves that there was no limitation on her to come out of matrimonial home and she had also a autocracy to speak with her father over telephone. Both PW. 1 and PW. 2 settled about critical and grave conditions on 17.4.05 but, a father did not come to her matrimonial home on 17.4.05 and he came to his daughter’s matrimonial home usually on 18.4.05. It clearly establishes that on 17.4.05 there was no such critical or grave conditions in a matrimonial home of O.P./wife, and has there been any such grave conditions her father would have refused to her matrimonial home on 17.4.05 during night after receiving a telephone. The justification of a father that his mother went divided holding her ornaments and income also establishes that she was not driven out of matrimonial home in singular cloth.

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13. On care of a justification and a resources we am of opinion that it is a mother who left a matrimonial home on her possess and is staying in her father’s residence yet any usually cause. Section 125(4) of a Cr. PC clearly lays down that no mother shall be entitled to accept an stipend for a upkeep from her father if she yet any sufficient reason refuses to live with her husband. The justification and a resources clearly infer that a mother is vital in her father’s residence yet any sufficient cause. It is also transparent that a father done several attempts to take behind her but, she did not come behind to matrimonial home and in open Court she clearly settled that she would never go to her husband’s house. Considering a whole situation, resources and evidence, we am compelled to observe that there was no loosening on a partial of a father to say her. It is a mother who is not during all meddlesome to come behind to her husband’s house. In this box in perspective of a supplies of Section 125(4) of a Cr. PC, a O.P. mother is not entitled to explain any upkeep for herself. In this connection, a decisions cited by Mr. Chatterjee namely, Gita Das @ Sangita Das v. Tapas Das (supra) and Kumar Sankar Chakraborty v. Juthika Chakraborty (supra) are apposite. The schooled Magistrate unsuccessful to conclude a justification and resources and erred in law in awarding upkeep in foster of a O.P. wife.

14. Though there was no slight on a partial of a father in honour of his avocation to a wife, a postulant is firm to compensate upkeep to a teenager son. It is transparent from justification that a father postulant did not send any income or upkeep in foster of a teenager son including a wife. It has been hold that a mother is not entitled to explain any upkeep as she is staying in her father’s residence yet any usually cause. Being a father, a postulant can't repudiate his duty, shortcoming and requirement to demeanour after Ms teenager son, and here he was inattentive in progressing his son as he did not compensate any income or upkeep to his teenager son. In justification he certified that he is incompetent to furnish any paper to uncover that he is profitable fees of propagandize for a son or other educational costs. Accordingly, a petitioner-husband is firm to compensate a upkeep in foster of his son and we am of opinion that a sequence of upkeep postulated by a schooled Magistrate for a teenager son was scold and scold and a pronounced sequence requires no interference. The sequence of a schooled Magistrate extenuation upkeep @ Rs. 700/- per month in foster of a teenager son requires alteration as pronounced volume was deficient for a propagandize going son. Considering a marketplace cost of essential line we approach that a postulant shall compensate upkeep during a rate of Rs. 1,000/- per month to his teenager son with outcome from date of a focus underneath Section 125 of a Cr. PC and remuneration of upkeep of any month shall be done within 10th of a subsequent month according to English calender. Arrear to be paid in 10 monthly instalments along with stream monthly upkeep amount. Payment of maintenance, if any, in terms of instruction of this Court antiquated 12.6.06 shall mount practiced conflicting a volume of upkeep postulated in foster of teenager son of postulant including arrears.

15. The revisional focus is accordingly authorised in part. The sequence of a schooled ACJM antiquated 10.4.06 extenuation upkeep in foster of a O.P. mother is set aside and a subsequent partial of a sequence extenuation upkeep in foster of a teenager son of a O.P. mother is mutated to a demeanour and border as indicated above.

16. All halt orders upheld progressing mount vacated. Criminal Section is destined to brazen a duplicate of this sequence to a schooled ACJM, Barrackpore for information and required action.

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