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Sm. Swastika Sen-vs-The State Of West Bengal And Sri on 3 December, 2002

Calcutta High Court Sm. Swastika Sen-vs-The State Of West Bengal And Sri on 3 December, 2002
Equivalent citations:(2003) 2 CALLT 359 HC, I (2004) DMC 66
Author: M Basu
Bench: M K Basu


M.K. Basu, J.

1. This revisional application under Sections 482 Cr.PC is directed against the order dated 7.1.2002 passed by the learned SDJM, Alipur in Case No. M-244/01 pending before that Court under Section 125 CrPC rejecting a prayer for interim maintenance of the petitioner and interim award of Rs. 1500/- per month on account of the child till the hearing and disposal of the main petition. The case of the petitioner is as follows.

She was married to the opposite party No. 2 Promit Sen according to Hindu rites. On 18th June, 1998 soon after the marriage she was subjected to severe mental and physical torture by the opposite party No. 2 and her in-laws. The opposite party No. 2 was whimsical, selfish and irresponsible and he used to abuse the petitioner and to pick up quarrel with her every now and then on baseless and false accusations. She used to be constantly intimidated, threatened and assaulted by the opposite party No. 2 on a number of occasions on the ground of his dissatisfaction in respect of articles given by her parents during their marriage. Ultimately she was sent by the opposite party No. 2 and her in-laws to her parental home where she has been residing till now and the expenses of her and her child’s maintenance are being borne by her father. The opposite party No. 2 neither care to bear any such expense nor paid any visit to her father’s house nor take any information about them. She has no independent source of income. Under such circumstances she has filed the petition under Section 125 Cr.PC in question claiming maintenance from the opposite party No. 2 on account of herself as well as the child who was born out of this wedlock. The petitioner also filed a criminal case against the opposite party No. 2 and the other in-laws under Sections 498A and 406 IPC which is in the Court of the learned Magistrate being Jadavpur P.S. Case No. 190/2000. The Police after investigation has submitted a charge sheet in that case against the opposite party No. 2 and the other in-laws and that case is still pending in the Court of SDJM, Alipur for trial. The opposite party No. 2 is a professional singer and is the owner of an Export oriented Concern Style as M/s. Super Exports having its office at Mission Road, Bangalore-56, He is also a major shareholder of M/s. Super Plastic wherefrom he earns more than Rs. 1 1/2 lakhs per month. The petitioner has 10% share in a Travel Agency Firm under this Style M/s. Capri International which is owned by her mother but the form of business of that Firm is absolutely uncallable and since July 2001 she did not receive any remuneration from that firm in any manner. She has prayed for grant of maintenance to the tune of Rs. 20,000/- per month for herself and Rs. 10,000/- per month for the child.

2. The learned SDJM after hearing both sides and perusing a document filed by both the parties passed the impugned order rejecting the prayer of the petitioner for grant of interim maintenance and directing payment of Rs. 1500/- per month by way of interim maintenance for the child. Being aggrieved by this order the petitioner has preferred this revisional application challenging the same as erroneous and unjustified being passed on the basis of vague surmises and conjectures.

3. The contention of Mr. Basu, the learned advocate for the petitioner has been that it is not understood wherefrom the learned Magistrate could draw the conclusion that the petitioner was not a destitute lady and need not require any maintenance. Mr. Basu has criticised the impugned order as improper and perverse and his findings that the petitioner had some income of her own as totally unwarranted. According to Mr. Basu, the learned SDJM has not given any reason for coming to such finding and passing the impugned order and being a non-speaking order it has been rendered liable to be set aside. In support of his contention he refers to the decision

wherein it has been held that assigning of reason in an order passed by an Administrative Authority or a judicial forum is of utmost importance and necessity. This is so because giving of reason is the sine qua non of ajudicial order and is a consequence of the principle of natural justice. Mr. Basu then submits that the provisions of the Cr.PC having been amended by the Act No. 50 of 2001, a Magistrate is no longer required to keep the amount of maintenance confined within the limit of Rs. 1500/- and in view of such Amending Act, the limit is only reasonableness. According to him, considering the standard of living of the parties and the rising price index in respect of the essential articles which are being necessaries the learned Magistrate ought to have awarded a much higher amount by way of maintenance for the child. So far as the wife is concerned, according to Mr. Basu, she having no independent source of income is entitled to get a reasonable amount of maintenance from the opposite party No. 2 whose income has already been mentioned above. Mr. Basu refers to a number of decisions of the Apex Court to bring home his point that the husband is under a statutory duty to provide maintenance to his married wife and under the shastric mandate also such an obligation has been cast upon the husband irrespective of whether the wife has got any stridhan properties or even any earnings. Mr. Basu’s further contention is that in view of the Central Amendment of Section 125 of the Cr.PC the limit of award of maintenance under the said section need not be confined to Rs. 1500/- and the learned Magistrate is now at liberty to award a higher amount if found justified or necessary. The question, however, has been raised as to whether the said amendment has got any retrospective effect, that is to say, whether the pending proceedings should be governed by the same. Inasmuch as, it came into force with effect from 24th September, 2001 when this proceeding had already been pending. Mr. Basu has strenuously argued that such a beneficial legislation will have retrospective effect and such pending proceedings will come under its purview. In this connection he refers to the decision reported in (1) , (2) . (3) , (4)

AIR 1978 SC 741 & 1807, (5) AIR 1991 SC 1256 and (6) 2000 CCrLr (Cal)


4. As against this, Mr. Gooptu, the learned advocate for the opposite party No. 2 has argued that the petitioner cannot be entitled to get any award of maintenance for herself, because she has an independent source of income, a fact which is prima facie established from the document, namely, Income Tax Return submitted by her before the Income Tax Authority and the learned Magistrate was perfectly right refusing to award any interim maintenance at this stage after being satisfied prima facie from the documents filed by the parties that the petitioner having submitted Income Tax Return had definitely some source of income of her own and in view of the legal position she could not be entitled to get any maintenance from the husband. Mr. Gooptu draws my attention to pages 80 to 83 of the LCR. The Income Tax Statement pertaining to the Assessment Year 1999-2000. The next contention of Mr. Gooptu is that the amount of Rs. 1500/- as awarded for the child would not be enhanced, inasmuch as, the amendment of Section 125, Cr.PC as pointed out by Mr. Basu cannot have any retrospective effect. In support of the contention he cites the following reference:

(1) (Y. Arul Nadar v. Authorised Officer, Land

Reforms, Thanjavur) wherein it has been held that as per the general rule when an amendment is introduced in the statute governing the case already pending, the rights and obligations of parties should be decided only according to the law which existed when the action was begun unless a clear contrary intention is evident in the Amending Act and there could not be any imputation of retrospective operation to an Amending Act and that could be done only by the Amending Act either expressly or by necessary implication; (2) (Bhagat Ram Sharma v. Union of India and Ors.)

wherein it has been held that it is a matter of legislative practice to provide while enacting an amending law that an existing provision shall be deleted and a new provision substituted and such deletion has the effect of repeal of the existing provision and such a law may also provide for the introduction of a new provision. It bas been further held therein that amendment is in fact a wider term and includes abrogation or deletion of a provision in an existing statute and an amendment of substantive law is not retrospective unless expressly laid down or by necessary implication inferred; (3) AIR 1924 All 563 (Kashmiri Lal v. Kishen Deb wherein it has been held that inasmuch as the accused had incurred the liability to have his prosecution sanctioned and the complainant on the dismissal of his application by the subordinate Judge had acquired a right to apply for sanction to the Appellate Court, Section 6(sic) of the General Clauses Act applied to the case and the repeal of the old Section 195 did not affect the investigation and (4) AIR 2000 Mad 167 wherein it has been held that in case of Motor Vehicles Act being amended and each amending provision providing for no fault liability cannot be given retrospective effect, because if such retrospective effect was given, then it would definitely affect existing right or obligation of the owner of the vehicle in question and the insurer for no fault of theirs and it has to be decided in consonance with the law as it stands on the day of its moving, since it is a matter pertaining to procedure. It has been further held in this judgment that when two interpretation are found possible regarding the question of retrospectivity, the interpretation that the provision is prospective will be preferred.

5. Mr. Gooptu placing reliance upon the decision (Bhagban Dutt v. Sm. Kamala Devi and Anr.) contends that a wife’s right to maintenance is not absolute and in determining the amount of maintenance a Magistrate is competent to take into consideration the separate income and means of wife. Their Lordships in this case have further observed that any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own to misuse the section as a punitive weapon against their husbands.

6. Mr. Gooptu then contends that Section 125 CrPC is not intended to provide for a full and final determination of the status and personal rights of the parties at the interim stage and the jurisdiction conferred by this eection on the Magistrate is more in the nature of the preventive rather than a remedial jurisdiction and it is certainly not punitive.

7. He then submits that his client is suffering from chronic thyroid problems due to which he is undergoing medical treatment under the supervision of various doctors and a large amount of money has to be mobilised in order to continue his treatment and such facts are borne out from the medical documents annexed to the written objection filed by this opposite party No. 2 before the trial Court and due to such continued ailment and long absence from this city he is unable to derive any income from his profession, namely, singing Rabindra Sangeet and consequently he has to depend on others for his subsistence and medical treatment as has been stated by him on oath in the affidavit.

8. Mr. Gooptu then refers to the decision

to bring home the point that when affidavits are submitted by the parties in a proceeding for disposal of interim application under Section 125 CrPC, in the event one version is rejected being untrue or not credible at the interim stage pending trial, the other is to be accepted prima facie by the trial Court as proved. Mr. Gooptu has further submitted that the Income Tax Statement of the petitioner pertaining to the relevant year in question, that is, 2000-2001 has not been produced before this Court, though the learned counsel of the petitioner was so directed and on behalf of the petitioner the submission having been made that no return has been filed by her for the subsequent Assessment Year it should be taken that the petitioner having violated the mandatory provisions of the law as she has not

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