Calcutta High Court Tapash Kumar Paul-vs-Soma Pal And Anr. on 5 May, 2006
Equivalent citations:(2006) 2 CALLT 590 HC
Author: P N Sinha
Bench: P N Sinha
Pravendu Narayan Sinha, J.
1. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) filed by the husband petitioner is directed against the Judgment, and order dated 12.9.03 passed by the learned Additional Sessions Judge, 13th Court, South 24-Parganas at Alipore in Criminal Motion No. 436/01 thereby allowing the application under Section 125 of the Code filed by the Opposite Party (in short O.P.) wife after setting aside the order of the learned Judicial Magistrate, 2nd Court, Sealdah in Misc. Case No. 45/2000 dismissing the application filed by the wife under Section 125 of the Code.
2. During pendency of the present revisional application, the O.P. wife, on 24.4.05 married one Partha Bhattacharya and the husband petitioner also obtained a decree for divorce against the wife from the Court of the learned Additional District Judge, 9th Court, Alipore on 4th September, 2004 in Matrimonal Suit No. 48/01. The Husband petitioner accordingly filed the application being CRAN No. 11/06 thereby praying for modifying the order dated 19.11.03 and 19.1.04 passed by this Court and also for setting aside the order dated 12.9.03 passed by the learned Additional Sessions Judge and for dismissing the Misc. Execution Case No. 29/03 pending in the Trial Court.
3. As the application being CRAN No. 11/06 has been filed by the husband petitioner supported by affidavit disclosing subsequent events, I intend to dispose of both the revisional application being CRR No. 2458 of 2003 and CRAN No. 11/06 as I think that the High Court is competent enough to consider the subsequent events when attention of the High Court has been drawn by the husband by filing the application supported by affidavit and there is no need of referring the matter back to the learned Court below for decision exercising power under Section 127 of the Code. In order to avoid multiplicity of proceeding this Court is competent enough to exercise the powers of Section 127 of the Code considering the subsequent events on the basis of application filed by the husband.
4. The facts giving rise to the criminal revisional application may be summarised as follows:
5. The O.P. wife as petitioner in the Court of learned Magistrate filed an application under Section 125 of the Code against the husband petitaoner and it was registered as Misc. Case No. 45/2000. The allegation of the O.P. wife was that she was married with the husband petitioner on 24.11.99 according to their Hindu rites and customs and the marriage was registered on 13.12.99. On the very night of ‘fulsajja’, the husband petitioner told the wife that he does not like to lead conjugal life with her and he has one girl friend. The wife would lead a life remaining in his house as a maid servant and she would be provided with food, clothings etc. Two days thereafter, the wife told the matter to her mother-in-law but, she received a slap from her mother-in-law. On 3.1.2000 she was driven out of her matrimonial home after assault. Thereafter, she went to her father’s house and her father brought her back again to matrimonial home on 7.1.2000 but, the husband and his family members did not accept her properly and did not behave well with her and, ultimately drove her out of matrimonial home on 21.1.2000. It was alleged by the wife that during this period the husband and his parents compelled her to write under threat that she was involved with one person and had illicit relation with that man. After being driven out, the wife filed one FIR at Chitpur Police Station and subsequently, she filed the application under Section 125 of the Code praying for maintenance @ Rs. 1000/- per month. She in her application alleged that her husband is an employee of a contractor of Calcutta Telephones and earns Rs. 5000/- per month and is also running a dancing school from where he earns Rs. 6000/- per month.
6. The husband petitioner contested the Misc. Case by filing written objection denying therein all the material averments of the application under Section 125 of the Code filed by the wife. The husband petitioner inter alia contended that his marriage with the O.P. wife was settled on the basis of advertisement in newspaper and on condition that there would be no demand for dowry from their side. The wife created pressure on him to live separately and when he refused the request of his wife, his wife left his house on her own sweet will. He was a casual employee of Calcutta Telephones but subsequently he lost that service. He is not running any dancing school and has no income from any dancing school. He was unnecessarily involved in a criminal case under Section 498A of the Indian Penal Code (in short IPC) as a result of which he lost his job. The husband contended that as he has no income and as the wife was living in adultery and as she left the matrimonial home voluntarily, the wife was not entitled to receive any maintenance under Section 125 of the Code.
7. It appears that, in the Court of the learned Magistrate four witnesses were examined by the wife including herself as P.W. 1 Soma