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Constitution Of India vs Unknown on 6 August, 2014

Kolkata High Court (Appellete Side) Constitution Of India vs Unknown on 6 August, 2014Author: Joymalya Bagchi

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06. 08.2014

m.b

C.R.R. 668 of 2012

In the matter of: An application under Article 227 of the Constitution of India.

In re: Susanta Kumar Biswas …….petitioner

Mr. Atis Kumar Biswas

…for the petitioner

At the very outset it has been submitted by the learned counsel for the petitioner that the matter has come up in the list with wrong cause title.

Let necessary correction be made in that regard. Order dated 07.09.2011 passed by the learned Judicial Magistrate, 2nd Court, Krishnanagar, Nadia, in M.R. Case No. 475(iv) of 2009 directing maintenance at the rate of Rs.5,000/- per month to the opposite party/wife and Rs.4,000/- per month for her school going minor son from the date of filing of the application has been assailed.

The case made out by the opposite party/wife in her application is to the effect that she was married to the petitioner on 16.12.1996 under the Hindu Marriage Act and at the time of marriage, substantial dowry was paid. A male child was born to the couple on 04.01.1999. In the meantime, the petitioner/husband developed extra-marital relationship with other women and ill-treated the wife. He was, in fact, caught in an objectionable condition with one Susmita Talukder. Father of the opposite party/wife intervened and gave money to purchase a house at Bowbazar, near D.L. Roy Road, Krishnanagar in the joint name of the parties in order to 2

protect the future of the opposite party/wife but the petitioner did not amend himself. He continued with his illicit association. He even physically assaulted the minor child. The opposite party/wife does not have any income and the petitioner earns salary of Rs.32,000/- per month. The opposite party/wife prayed for maintenance of Rs.5,000/- per month for herself and Rs.4,000/- per month for the minor child.

The petitioner opposed the prayer by filing written objection. Relationship of the parties was admitted and it was alleged therein that the opposite party/wife was having an affair which resulted in hot altercation between the parties. It was pleaded that a criminal case was started against him under Section 498A of the Indian Penal Code and he was arrested from his house. After being enlarged on bail, he was not being allowed to enter into the joint property. It is further claimed that opposite party/wife has income of her own as evident from Income Tax Returns filed during 2003-2006. In course of the proceeding, the opposite party/wife examined herself as P.W. 1, her father and one Biplab Kanti Sengupta examined themselves as P.W. 2 and P.W. 3 respectively. On the other hand, the petitioner examined himself as DW-1.

After analyzing the evidence, the learned Magistrate by the impugned order directed payment of maintenance allowance as aforesaid.

Learned counsel appearing for the petitioner submits that his client was driven out from his own house and the quantum of maintenance fixed is disproportionately high as the net income of his client is substantially lower because of the house building loan taken by him. He further submits that the learned Magistrate did not take into consideration the earnings of the opposite party/wife. He accordingly prayed for setting aside the impugned order. 3

I have considered the submissions of the learned counsel for the petitioner as well as the materials on record. I find that relationship of the parties is admitted. I also find that property had been purchased in the joint name of the parties and that there is evidence on record that the petitioner was caught red handed in an objectionable condition with another lady. It has been observed by the learned Magistrate that there was no evidence adduced with regard to the fact that petitioner has not being given access to the joint property. Learned counsel for the petitioner strongly argued that in the written objection reference has been made to an application filed before the learned Sub-Divisional Executive Magistrate. I am of the considered view that the petitioner has not made serious efforts to gain access to the joint property for the reasons best known to him. However, his unwillingness to reside in the same property with his wife cannot be a ground to deny maintenance to the wife and the minor child if they are otherwise entitled to the same. Hence, I am unable to accept the contention of the learned counsel for the petitioner that quantum of the maintenance requires to be reduced on the premise that the petitioner had chosen not to reside in the joint property. It is one thing that the petitioner has voluntarily withdrawn from the company of his wife and is residing elsewhere. It is entirely different if the petitioner is obstructed from entering into his house. No evidence has been adduced in support of the latter. I am also unable to accede to the submission of the learned counsel of the petitioner that the opposite party/wife presently has income of her own. Income Tax Returns with regard to earlier years had been furnished. However, proceeding was instituted in 2006 and there is nothing on record that from the date of initiation of the proceeding till date opposite party/wife has independent income of her own. Past income of an estranged wife cannot be a ground to disentitle her from claming maintenance in the event she does not have any income of 4

her own at the time of institution of proceeding or on the date of passing of the order.

It has been also argued that the maintenance ought to have been granted from the date of passing of the order. Learned counsel for the petitioner relied on various authorities in support of his contention. He has placed reliance on 2005 (3) CHN 62, 2006(1) C Cr LR 695 and 2010 ( 2) CLJ 232. I am of the view that ratios in the aforesaid decisions do not support the case of the petitioner, as in the instant case, proceeding was pending for a protracted period of time, namely, three years from the date of its initiation. It is settled law in the event a proceeding is pending for a protracted period of time, that by itself would give rise to special reason for passing an order of maintenance from the date of application and not from the date of order. That apart, in the impugned order it has been clearly mentioned that amount, if any, paid by way of interim maintenance shall be adjusted to the arrear dues. Therefore, I find no reason to interfere in the impugned order on that score too. With the aforesaid directions, the revisional application is dismissed.

Petitioner is at liberty to pray for instalments before the learned Magistrate for liquidation of the arrear dues, if so advised. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.

(Joymalya Bagchi, J.)

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