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Shambhu Mondal vs Smt. Malina Mondal (Roy) on 16 March, 2020

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IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Jay Sengupta

C.R.R. 3640 of 2016

Shambhu Mondal

Versus

Smt. Malina Mondal (Roy)

For the petitioner : Mr. Siva Prasad Ghoshe

….. Advocate

For the State : Mr. Dhananjay Banerjee

….Advocate
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Heard lastly on : 27.01.2020

Judgment on : 16.03.2020

Jay Sengupta, J.:

1.

This is an application challenging the judgment and order dated

22.08.2016 passed by the Learned Judicial Magistrate, 2nd Court,

Barrackpore, North 24-Parganas in Maintenance Case No. 106/2008.

2. Learned Counsel appearing on behalf of the husband/petitioner

submitted as follows. The wife/opposite party had voluntarily left her

matrimonial residence. Afterwards she filed an application under Section

125 of the Code claiming maintenance allowance for herself and for her

daughter. On 13.08.2008, the Learned Magistrate was pleased to grant

interim maintenance of Rs. 800/- and Rs. 400/- per month, respectively to

the opposite party/wife and her daughter. On 22.08.2016, the proceeding

was finally disposed of by the Learned Magistrate by directing the petitioner

to pay Rs. 3500/- per month to the opposite party/wife and Rs. 2500/- per

month to their daughter as monthly maintenance allowance under Section

125 of the Code. The petitioner was an employee of a company which

suspended its operations with effect from 15.01.2015. As such, it was

absolutely impossible for him to pay such sums of money to the opposite

party and her daughter. The daughter was an adult and was residing with

the wife. The petitioner was also a heart patient and the wife admitted in her

evidence that he had suffered heart attack and had to undergo a bypass
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surgery. In 2017 the husband suffered a cerebral attack and pacemaker had

to be installed. The petitioner had earlier prayed for custody of their

daughter and as would be evident from the deposition of PW 1, he used to

send money to the wife when he was in service. On the other hand, the

opposite party/wife committed serious indiscretions including living in

adultery and having adulterous relationships with at least three persons.

Once she was caught red handed and the paramour had to give an

undertaking. Such document was proved by him during the present

proceeding. Besides, the criminal case started under Section 498A of the

Penal Code by the wife was dismissed because the wife failed to prove her

case. The wife herself filed a matrimonial suit seeking divorce in 2016. Since

the wife herself deserted the husband without just cause, she could not

claim any maintenance allowance. In fact, the wife had independent income

of her own. She was working as an agent of the post-office and even carried

a business of lending money. On one occasion the wife had to give a written

undertaking before the Titagarh Police Station admitting that her mother

had made an incorrect complaint against her husband. Reliance was placed

on a decision reported in Samima Begum @ Khatun versus Sk. Abdul

Rahaman @ Imanur Rahaman, 2006 (2) CHN 753 and it was submitted that

it was required to prove neglect or refusal on the part of the husband to

maintain his wife in order to sustain an application under Section 125 of the

Code. Reliance was placed on a decision reported in Samita Saha versus

Mohan Saha Anr. 2011 (2) CLJ (Cal) 129 and it was submitted that if the

wife does not have sufficient ground to live separately, in view of Section 125

of the Code she would not be entitled to receive any maintenance allowance.
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Reliance was also placed on decisions reported in Gita Das @ Sangita Das

versus Tapas Das Anr., 2004 (1) CHN 237 in this regard. Reliance was

also placed on a decision reported in Lata Biswas versus Shanti Ranjan

Biswas, 2016 (4) CHN (Cal) 569 and it was submitted that while dealing with

an application under Section 24 of the Hindu Marriage Act, this Court held

that the discretion in granting alimony pendente lite was to be exercised on

sound reasoning as regards whether the wife was being supported by an

adulterer and whether the wife was ready and willing to go and live with her

husband and the husband did not wish to keep her with him.

3. Learned Counsel appearing on behalf of the wife/opposite party

submitted as follows. After the marriage of the couple in 1996, the wife was

tortured mentally and physically. She was mercilessly assaulted for failing to

fetch more dowry. Eventually, in the night of 06.03.2008 she was assaulted

and threatened with murder. In the morning of 07.03.2008 the petitioner

was compelled to take shelter at her mother’s place. In the proceeding

initiated by her under Section 125 of the Code, the husband filed a written

objection, but admitted the marriage as well as the paternity of the child. In

the objection, the husband falsely alleged that the wife was having illicit

relationships with others, she was a habitual drunkard and was working at

a microfinance company. The wife made it clear in her deposition that she

was forced to sign on a paper while she was being compelled to leave her

matrimonial home on 26.04.1998. Moreover, the document tendered was

not marked as an exhibit. So far as the note dated 05.03.2008 purportedly

executed by an alleged paramour was concerned, the same was absolutely
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inadmissible in evidence as no one came to prove it. The husband could not

have known his signature and hence, could not have proved the purported

document. Similar ought to be the fate of the purported document in respect

of husband’s allegations that the wife had given loans to some others. A

person could not identify the signature of a third party whom he did not

know unless and until the said third party was called as a witness. As

regards the acquittal of the husband under Section 498A of the Penal Code,

the acquittal was due to non-availability of any witness to the proceeding.

There, the wife refrained from deposing as at that point she did not want her

husband to be punished and put into custody. Moreover, the lodging of

general diary entries by the husband did not prove anything more than that

the husband was adept in preparing formal safeguards to defend his case.

The documents annexed with the supplementary affidavit of the petitioner

as regards the ownership of a scooty were self-contradictory. While the

vehicle stood in the name of the wife, a challan dated 19.12.2016 was issued

in favour of another person. Challan in such cases were issued only to the

owner of vehicle. Despite the orders passed by the Learned Trial Court, the

petitioner was not paying any maintenance to the wife and the daughter and

an execution case was pending in this regard. After being compelled to leave

her matrimonial home, the wife had to bear the entire expenses for food,

medicine and education of their daughter with the meagre sums provided as

maintenance as per Court’s order. After a point, even that stopped. The

prayer for custody of the daughter was a mere show in as much as the

husband never prayed for custody of her daughter when she was a minor.
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The husband was trying to avoid payment of maintenance allowance to the

wife and the child on unsubstantiated, baseless and false allegations.

4. I heard the submissions of the learned counsels for the parties and

perused the revision petition and the affidavits filed in this case.

5. In the present case the marriage between the warring couple and the

paternity of the daughter have been admitted by the petitioner/husband.

6. Now, one has to see whether there was any neglect on the part of the

husband to maintain the wife and the child. While the husband/petitioner

claimed that the wife/opposite party voluntarily left her matrimonial home,

the latter alleged that she was compelled to leave after being severely

tortured, both mentally and physically. The wife’s deposition that she was

forced to sign on a paper while she was leaving her matrimonial home in

1998 under compulsion is a fair explanation for giving any such

undertaking. There is no allegation that at that point she was having any

adulterous relationship with anyone or that she had any other particular

reason to leave the matrimonial home. At that point she was with a minor

child and both were to be provided for. Although the husband claimed that

while in service, he sent sums of money to the wife and child for their

maintenance, it is also a fact that an execution proceeding is pending for

recovery of arrears of maintenance against the husband and it was claimed

by the wife that after a point, the husband stopped paying maintenance

allowance to them despite Court’s order. From the evidence and other
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materials on record, it appears that the wife has been able to show, prima

facie, that she and her daughter were neglected by the husband.

7. The husband’s claim that he prayed for custody of the daughter is

also not a complete truth. As pointed out on behalf of the wife, the husband

prayed for such custody only when the girl had become a major. As such,

this was merely a sham exercise undertaken by the husband to

unsuccessfully try to vindicate his stand that he always cared for the

dependents and, in fact, prayed for custody of the daughter at some point.

8. In respect of the allegations of cruelty, the wife gave details of the

torture meted out by the petitioner/husband. It may be argued that the

lodging of GD entries by the husband was a ploy to protect himself. In any

event, this may not be of much help as regards the allegations of cruelty

levelled against him. No cogent reason has been cited by the husband as to

why the wife would leave her matrimonal home with her child so early after

the marriage. His acquittal under Section 498A of the Penal Code may be

relevant, but the findings may not binding in a proceeding under Section

125 of the Code. Among other things, the acquittal was granted because of

lack of evidence. In fact, the wife deposed that since at that point she did not

want her husband to be punished or put to jail, she did not venture to give

evidence in the proceeding.

9. As regards the contention of the husband that the wife was not

entitled to maintenance as she had adulterous relationships with several
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persons, it is incumbent upon the husband at least to, prima facie, show

that such serious allegations levelled by him are made out. I agree with

submissions of the Learned Counsel for the opposite party that a document

executed by a third party cannot be proved by a person who is supposedly a

stranger to the said third party. Accordingly, the purported undertaking

executed by an alleged paramour of the wife could not have been proved by

the petitioner/husband. On the other hand, the husband failed to produce

any independent witness to substantiate his serious allegation that the wife

was ‘living in adultery’.

10. In a proceeding under Section 125 of the Code, evidence about

matrimonial disputes and the like are not to be proved beyond reasonable

doubt. Only a prima facie view is to be taken. In this regard, reliance is

placed on the ratio laid down by the Hon’ble Apex Court in the case of

Rajathi Versus C. Ganesan, AIR 1999 SC 2374.

11. The decisions relied on behalf of the petitioner/husband are clearly

distinguishable in the facts of the present case. No doubt, a prime facie case

has to be made out by the wife for claiming maintenance. A wife has to

prima facie show that she cannot maintain herself and has been neglected

and/or tortured by the husband that gave her justifiable ground to stay

separately. Also, she should not live in adultery with anyone. In the present

case, neither the husband has been able to show that the wife had engaged

in adulterous life with anyone nor could he show that the wife did not have

sufficient grounds to stay away from him. On the other hand, the wife has
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been able to make out prima facie cases of being compelled to leave, of being

neglected by the husband and of her consequent entitlement to maintenance

allowance for herself and for her daughter.

12. On the question of the sums of maintenance allowance granted in the

present case, the Learned Magistrate came to a correct conclusion as

regards the earning capacity of the husband and in any event, the sums

awarded are not too high in today’s context. Moreover, the husband could

not sufficiently prove that the wife was having adequate independent income

from regular sources.

13. In view of the above discussions, I do not find any merit in the

application. Accordingly, the same is dismissed. However, there shall be no

order as to costs.

14. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.)

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