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Subhas Halder vs The State Of West Bengal & Anr on 9 April, 2019

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In The High Court At Calcutta
Criminal Revisional Jurisdiction
9.4.19
CRR 4242 of 2017
Subhas Halder
v.

The State of West Bengal Anr.

Mr. Abhra Mukherjee
Mr. Sauradeep Dutta
… for the petitioner.

Affidavit-of-service filed today be kept on record.

In spite of service none appears on behalf of the opposite party no. 2/wife.

This is an application by which the petitioner has assailed the order dated

October 9, 2017 passed by the Judicial Magistrate, 3rd Court, Bishnupur in Misc.

Case No. 26/48 of 2017, whereby and whereunder allowed the Misc. Case under

Section 125 of the Code of Criminal Procedure, ex-parte and directed the present

petitioner to pay a maintenance @ Rs. 12,000/- per month and Rs. 8,000/- per

month for the wife/opposite party no. 2, herein and their minor son respectively.

In this revisional application there is no dispute as regards marital

relationship of the petitioner with the opposite party no. 2/wife. It is submitted

that criminal case for the charge under Section 498A IPC has been filed by the

opposite party no. 2/wife against her in-laws but not against the petitioner. The

challenge is in respect of the order passed by the learned Judicial Magistrate, 3rd

Court, Bishnupur, which was passed in absence of the petitioner ex-parte. It is

also submitted that the petitioner was sick and bed ridden due to his fractured

leg as would appear from the doctor’s report at page 23 of the revisional

application and this prevented the petitioner from conducting the case in the
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miscellaneous case under Section 125 CrPC which stood disposed of ex-parte

without evidence being taken on behalf of the present petitioner/husband. The

petitioner had submitted his written show cause contending that the entire

business as alleged by the opposite party no. 2/wife and the house belonged to

his father Raghunath Halder and the entire business used to be dealt jointly and

there is no separate income of the present petitioner/husband. It is further

submitted that, as a matter of fact, the father of the petitioner used to maintain

the entire business and the family expenses in maintaining the family members.

Therefore, the claim of the wife that the husband/ petitioner herein has earning

of Rs. 1,50,000/- from various fields is definitely not a correct version, although,

he is a secretary of a magazine viz. “Gandhobanik” that does not mean that he is

not earning Rs. 1,50,000/- per month. Accordingly, the petitioner has assailed

the order of maintenance awarded to the opposite party no. 2/wife and his minor

child. In support of his contention as to the earning the petitioner has submitted

the income tax return verification form for the assessment year 2012-13. 2013-

14, 2014-15, 2015-16 and 2016-17 which goes to show that the income of the

husband is not as claimed by the opposite party no. 2/wife. This factual aspect of

the case were not placed before the learned Magistrate on evidence for its

consideration.

Since the evidence has not been led on behalf of the petitioner/husband

obviously the learned Magistrate took the statement on oath as deposed by the

opposite party no.2/wife as evidence on proof in absence of any evidence to the

contract. However, the order reveals does not show that earning of Rs.
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1,50,000/- per month as claimed by the wife was accepted by the learned

Magistrate’s Court rather he has fixed the quantum of rate maintenance to the

tune of Rs. 12,000/- for his wife and considering obviously the business status of

the petitioner and further sum of Rs. 8,000/- to his minor son was granted to

meet the expenses towards his welfare and education. The petitioner was also

directed to pay a sum of Rs. 10,000/- as litigation cost. As such I do not find any

fault in the order so passed by the learned Magistrate. However, considering the

family business of the petitioner that too belonging to his father and considering

the income tax return, I am of the view that maintenance award at the rate of

12,000/- per month to the wife should remain intact and so far the sum of Rs.

8,000/- to his son concerned it may be revised to Rs. 3,000/- per month.

Accordingly, this revisional application is disposed of with direction to the

petitioner to pay total sum of Rs. 15,000/- per month to the wife for her

maintenance and to his son.

sh ( Shivakant Prasad, J.)

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