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Smt. Shila Ghosh-vs-Nilanjan Alias Niranjan Ghosh on 9 January, 2007

Calcutta High Court Smt. Shila Ghosh-vs-Nilanjan Alias Niranjan Ghosh on 9 January, 2007
Equivalent citations:(2007) 2 CALLT 477 HC, I (2008) DMC 379
Author: S K Gupta
Bench: S K Gupta

JUDGMENT

Sadhan Kumar Gupta, J.

1. This revisional application has been preferred under Section 401 read with Section 482 of the Cr. PC challenging the order dated 13/4/2005 passed by the learned Additional Sessions Judge, Fast Track Court-1, Krishnanagar in Criminal Motion No. 74 of 2004 whereby the learned Judge was pleased to modify the order dated 31/5/2004 passed by the learned Judicial Magistrate, Nadia in case No. l09(IV) of 2003.

2. Case of the petitioner is that she was married with the opposite party No. l on 09/2/2001 according to the Hindu Rites. But two months after the marriage, her husband and other in-laws started torturing her over the demand of dowry. As the said demand could not be satisfied by the petitioner’s father, so the torture upon her was aggravated. Even the brother-in-law of the petitioner gave immoral proposal to her and as she protested, so she was further tortured by the husband and his relatives. Finally on 25/10/2002 the petitioner was mercilessly beaten by the husband and she was driven away from the said matrimonial house. Since then she took shelter in her father’s house.

3. On the initiative of the father of the petitioner, the matter was considered by the Sahayata Kendra of Santipur Police Station where it was settled that opposite party/husband would divorce the petitioner by paying Rs. 4,50,000.00. However, the husband did not pay anything in terms of the said settlement.

4. The petitioner filed a case under Section 498A of the Indian Penal Code against the husband and the same is still pending in the Court. The petitioner has further claimed that she has got no income of her own and as such, unable to maintain herself. As, inspite of sufficient income, the husband has failed to provide maintenance to the petitioner, so she filed a petition under Section 125 of the Cr. PC claiming maintenance @ 5000/- per month for herself.

5. That husband contested the said case and denied all the allegations on the material points. However, the learned Magistrate, after considering the evidence of the parties and the materials placed before him, was pleased to allow the petitioner’s prayer for maintenance to the extent of Rs. 4,500/- per month.

6. As the husband was dissatisfied with the said order he preferred a revisional application before the learned Revisional Court, who, by his impugned order, was pleased to reduce the amount of maintenance to the extent of Rs. 1,500/- per month. Being aggrieved by the said order of the learned Revisional Court, this revisional application has been preferred by the wife/petitioner. According to the petitioner, learned Revisional Court was not at all justified in reducing the amount of maintenance, as passed by the learned Magistrate in favour of the petitioner/wife. According to the petitioner, the learned Judge failed to appreciate the income of the husband while fixing the amount of maintenance. As, according to the petitioner, the order, as passed by the Revisional Court is improper, so this Court, in exercise of its inherent power, should interfere with the said order and restore the order, as passed by the learned Magistrate.

7. The case has been contested by the opposite party/husband. According to the learned Advocate for the husband, the learned Revisional Court was perfectly justified in reducing the amount of maintenance. According to him, it is the settled position of law that not more than l/5th of the income can be allowed in favour of the wife towards her maintenance. Keeping this position in mind, it must be said that there was no illegality in the order, as passed by the learned Revisional Court and, as such, said order should not be interfered with by this Court.

8. It is the admitted position that the marriage in between the parties is not sputed. It is also undisputed that the petitioner/wife is now not staying in the matrimonial house. She has claimed that she was compelled to leave the matrimonial house due to the alleged torture of the husband and his relatives. Both the Courts below were pleased to observe that the wife was able to prove that she had sufficient reasons for not staying in the matrimonial house. In view of these concurrent findings of the Courts below, I am of opinion that there is no scope for interference by this Court in respect of this point. As such, I hold that the petitioner/wife was able to prove that she had sufficient reason for not staying in the matrimonial house.

9. It is also not disputed that the wife has got no income of her own. As such, under such circumstances, she is certainly entitled to get maintenance from her husband provided she can prove that the husband has got sufficient income to provide maintenance in favour of the wife. In order to establish this fact, the wife has claimed that the husband is a central government employee and is earning Rs. 8,500/- per month. This fact has not been denied by the husband. Under such circumstances, it must be said that the husband has got sufficient income of his own. Learned Advocate for the petitioner/wife argued that the husband has get extra income of Rs. 10,000/- per month from his agricultural and other properties. But both the Courts below were of the opinion that the wife has failed to establish this fact. As such, it is not possible for this Court to interfere with such concurrent findings of the Courts below. Be that as it may, it appears that the learned Magistrate, on the basis of the salary of the husband, was pleased to award Rs. 4,500/- per month in favour of the wife towards her maintenance which is more than half of the salary of the husband. In my considered opinion, learned Magistrate was not at all justified in fixing such amount. Learned Revisional Court took into consideration this aspect and thereafter was pleased to fix Rs. 1,500/- per month towards maintenance of the wife. Learned advocate for the husband argued that the learned Revisional Court did not take into consideration the liability of the husband while fixing such amount. According to him, the husband is to maintain his parents also. But it has transpired from the evidence that the father of the husband was also a central government employee and, as such, he cannot be considered to be a dependent of the husband. So, this contention of the learned advocate for the husband is not accepted.

10. Be that as it may, it is the settled position that the wife is entitled to maintain herself as per status of her husband and accordingly the amount of maintenance should be fixed keeping this fact in mind. This amount of maintenance, under normal circumstances, may be about l/5th of the income of the husband. I have already pointed out that the husband’s salary was Rs. 8,500/- per month about two years before. By this time said salary has certainly been increased to some extent. Learned Revisional Court was not justified in ignoring this fact while fixing the amount of maintenance. To my mind, ends of justice will be served if the amount of Rs. 1,800/- per month is fixed towards the maintenance of the petitioner/wife instead of Rs. 1,500/- per month, as directed by the Revisional Court.

11. In the result, the revisional application is allowed in part on contest. The order dated 13/4/2005, as passed by the learned Additional Sessions Judge, Fast Track Court 1, Krishnanagar in Criminal Motion No. 74 of 2004 is confirmed subject to the modification that the opposite party/husband will pay Rs. 1,800/- per month in favour of the petitioner/wife towards her maintenance. The other parts of the order of the learned Additional Sessions Judge are confirmed.

Send a copy of this Judgment to the Court below at once for information and taking necessary action.

Xerox certified copy, if applied for, be handed over to the parties on urgent basis.

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