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.
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.
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.
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.
