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PINKI DAS (SARKAR) Vs. SWAPAN SARKAR

Judgements favoring men

 
Court:GAUHATI HIGH COURT

Bench: JUSTICE S. Talapatra

PINKI DAS (SARKAR) Vs. SWAPAN SARKAR On 23 April 2012

Law Point:
“Without reasonable excuse”. Clause as engrafted in Section 9, H.M. Act, 1955 and clause “without any sufficient reason” as engrafted in Section 125(4), Cr.P.C., do carry identical meaning and purport but situations or contexts are distinguishable in view of statutory objections.

 

 

JUDGEMENT

 

Heard Mr. S. Saha, learned Counsel appearing for the petitioner as well as Ms. N. Guha, learned Counsel appearing for the respondent.

2. This revision petition has been filed under Section 19(4) of the Family Courts Act, 1984 read with Sections 397 and 401 of the Code of Criminal Procedure, 1973 against the judgment and order dated 1.7.2009 as passed by the learned Judge, Family Court, West Tripura, Agartala, in Misc. Case No. 293/2008 on rejecting the prayer of the petitioner for grant of maintenance under Section 125 of Cr.P.C., 1973.

3. The petitioner was a co-petitioner in a petition filed under Section 125 of Cr.P.C. for grant of monthly maintenance in the Court of the learned Judge, Family Court, Agartala, West Tripura along with her minor daughter, namely, Liya Sarkar.

4. It is required that the allegations as made against the respondent be noticed in brief:
The marriage between the petitioner and the respondent was solemnized on 7.12.2004 as per Hindu rites and customs and thereafter both the petitioner and the respondent consummated their marriage. Their conjugal life was peaceful and harmonious for about 2/3 months and however on 3.3.2006 a girl child was born in their wedlock.

Having encouraged by the respondent, the petitioner also sat for Secondary Examination, 2006. At that time, the petitioner was at her parental home. After returning from the parental home on completion of the examination she suspected an illicit relation of the respondent with his maternal aunt who had been staying with them. It has been also alleged that one day at noon, the petitioner noticed the respondent with the said aunt in a compromising position. While the petitioner raised her voice she was physically assaulted by the respondent. The petitioner apprised the father-in-law and the mother-in-law who were staying at Gandachhera of the said illicit relation. The petitioner also apprised of the said illicit relation to the uncle of the respondent. But none of them did take any initiative to rescue their marital relation. The petitioner thereafter visited Gandachhera and the respondent followed her and when the respondent was confronted by the relatives in regard to the said illicit relation, the respondent threatened the petitioner with Dao (a cutting weapon) of killing her. On the following day, the petitioner was brought by the respondent to his residence at Anandanagar. Again on 4.10.2006, the respondent threatened the petitioner to tolerate the illicit relation, otherwise, she would face severe consequence and the petitioner was physically assaulted by the respondent. The petitioner was expecting that to save the marital relation, the respondent would come out of the illicit relation but on 26.3.2007, again the petitioner was tortured. On 31.2.2007, the petitioner was assaulted and her conch bangles was broken by the respondent. Having no other alternative, the petitioner, as stated in the petition, left for the paternal home. She was immediately hospitalized as she was having a gall bladder stone requiring immediate surgical intervention. At that point of time, the father of the petitioner took her at Kolkata for surgery where the respondent also accompanied them. The respondent sometime in 2008 visited the paternal house of the petitioner for taking her back to the matrimonial home but for the trauma that she had undergone, she could not gather her courage to go that matrimonial home. But after serious persuasions, the petitioner was taken to the residence of the respondent at Anandanagar but the petitioner was again subjected to mental and physical torture. The father of the petitioner took her to their residence at Gandachhera but the respondent again took her back at Anandanagar on 24.7.2008. All the time the respondent used to abuse her by slang and offensive language.

The said aunt, however, continued to stay with the respondent and they were enjoying their life. On 3.7.2008, the respondent again threatened the petitioner not to disclose anything about the illicit relation to anyone. Since the respondent works as a police constable, he used to be all the time at peak of his temper and did not care for the emotion and sensitivity of the petitioner. Ultimately, the petitioner left the matrimonial home for peace and started staying at the paternal house. From 30.7.2008, the petitioner was staying at the paternal home with her daughter.
5. In reply to the said petition, the respondent filed written objection whereby he denied all the allegations and stated that the said maternal aunt was staying with him since his childhood and she was the person who settled the marriage with the petitioner. Rather, the respondent alleged that:

“The petitioner No. 1 used to misbehave with said aunt and always used to abuse her with filthy language. But to the opposite party said aunt like his mother. The opposite party told his said aunt to stay in his house because his wife will remain alone in the house in his absence. Further, the respondent stated that “This relation should not have been doubted and should not have been stated to be illicit relationship because not only the opposite party but also to all, there is no difference between the mother and the sister of his mother.”

Hence, the aforesaid statement having stated to be absolutely false, baseless was denied by the respondent.

6. In Para-10 of the said written objection, the respondent has asserted as under:

“It is however a fact that hearing the allegation of illicit relationship between the opposite party and his said aunt from the mouth of the claimant No. l, the opposite party only gave one slap to the Petitioner No. 1. This act what have been done by any husband if he has got self-respect. However, subsequently the opposite party requested the petitioner No. 1 to excuse him for his aforesaid act. Ultimately it has been stated that the “The dispute between the Petitioner No. 1 and the opposite party was tried to be settled on homely discussion. Even the opposite party submitted application to the Pradhan of Belabar Gram Panchayat Smiti. Saraswati Das seeking redress and in connection with the dispute between the Petitioner No. 1 and the opposite party, a meeting of the said Gram Panchayat was also held on 3.11.2008. But the dispute remained as it is.”

7. The respondent made a prayer to the learned Judge, Family Court that the petitioner should be directed to return to the house of the respondent with their daughter. Otherwise, the child will not get her father’s love and affection. But the petitioner did not comply such desire of the respondent. However, it is required to be noted that no direction was issued by the learned Judge, Family Court to the petitioner for returning to the matrimonial home.

8. The respondent also filed an affidavit-in-opposition against the revision petitioner in this Court on 9.4.2011 on the same line of the said written objection.

9. In the said affidavit-in-opposition, the contention regarding the relationship between the respondent and his maternal aunt has been stated in the following words:

“When the allegation of having illicit relationship has been raised by the Petitioner, then the Respondent could not tolerate such absurd, dirty utterance against his aunt who had reared him since his childhood. His aunt was like his mother to him, and being the son he could not tolerate such absurd utterance against his mother. Thereafter, there had been hot argument between him and the Petitioner. But, when the claimant-Petitioner deserted him then the Respondent-Husband had immediately rushed to the house of the father of the Petitioner, and had requested the Petitioner again and again to come back. Considering the welfare of the family, if necessary, the Respondent-Husband was also inclined to remove the said aunt, but thereafter also the Claimant-Petitioner did not come back to the house of the husband till date.”

10. In the affidavit-in-opposition Sub-section (4) of Section 125 of Cr.P.C., 1973 was emphatically pressed into operation. The said Sub-section provides that:

“No wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be) from her husband under this section if she is living in adultery, or it; without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

11. According to the respondent, the learned Judge, Family Court, Agartala, West Tripura by the impugned judgment very rightly denied the maintenance to the petitioner. It has been also disclosed in the said affidavit-in-opposition that the respondent had preferred an application for restitution of conjugal rights being T.S. (RCR) No. 69 of 2011. According to the respondent, the petitioner without any rhyme or reason deserted her matrimonial home and refused to come back in spite of best efforts taken by the respondent and all the allegations regarding torture as made by the petitioner were false and fabricated.

12. The petitioner deposed before the learned Judge of the Family Court as PW-1 and reiterated that when the respondent was found in an intimate position with his aunt then she raised objection against such relation and she was subjected to torture both physically and mentally. Despite her serious objection, the same aunt continued to stay with the respondent. Not only that the respondent also refused to maintain the petitioner. The petitioner stated before the Court that the respondent might kill her out of rage if the said relation is not tolerated by her. One of the aunties of the petitioner deposed before the Court as PW-2 who stated categorically that he came to the house of the petitioner’s father and found marks of injuries on the body due to torture. He came to know from the mother of the petitioner and others that she was tortured by her husband because of her protest against the illicit relationship of her husband with his aunt. Another uncle of the petitioner, deposed before the Court as PW-3 stating that there had been allegation of illicit relationship of the respondent with his aunt and on this issue they sat together on many occasions for the purpose of mitigating the dispute and suggested the respondent to shift his aunt somewhere but it was not done by the respondent, so the problem continued. PW-4 was a tutor in the locality where the petitioner resided. He deposed that he heard that the petitioner was being tortured by his husband in regard to illicit relationship with his aunt. The father of the petitioner, namely, Shri Manindra Das, deposed as P W-5 who also reiterated that the petitioner was being tortured by her husband. He was told that the respondent was having an illicit relation with his aunt and was living in the same house at Anandanagar. The aunt of the respondent was given marriage to a person in their locality but she came back to that house. She had no issue. When the petitioner used to object the activities of her husband, she was brutally tortured by her husband and one day she was compelled to come back to his house.
The respondent was examined himself as DW-1 and stated that there was a dispute between his wife (the petitioner) and the said aunt regarding day-to-day domestic works and sometimes his wife used to misbehave with his aunt badly. Consequently, one day she deserted the respondent. But he avoided any reference to the allegations of illicit relationship. This statement somehow is absolutely different from the statement as made in the written objection. The said aunt, namely, Smt. Chhaya Rani Sarkar deposed before the Court as DW-2 and she stated that the petitioner could not come out successfully in the Madhyamik examination and she did not also want her to stay there. She further stated that the petitioner used to direct her to work as the maid servant. She was befuddled at the allegation made at her. But nowhere she stated that she would live separately for the peace of the petitioner and the respondent.
DW-3, a neighbour of the respondent, deposed that there could not be any bad relationship between the respondent and his aunt viewed from their age gap and she also denied that there was any dispute over that issue between the petitioner and the respondent. DW-4 who attended one meeting admitted that certain differences between the petitioner and the respondent were noticed and remained unresolved. He admitted that the petitioner alleged of her husband for having illicit relationship with his aunt but they could not believe that. He also admitted that there was allegation of torture but they did not witness such torture. One Sachindra Sarkar came and deposed before the learned Court as DW-5 who is the father of the respondent. He stated that his son was brought up by his sister-in-law, Chhaya Rani Sarkar. She considered his son as her son and there could not be any bad relationship. One Pradip Sarkar deposed before the Court as DW-6, stated that there could not be any bad relationship between the respondent and his aunt.

13. On appreciation of the evidence as led by the rival parties, the learned Judge, Family Court. Agartala, West Tripura by the impugned judgment dated 1.7.2009 rejected the prayer of the petitioner for maintenance holding that the petitioner had deserted her matrimonial home and in spite of efforts taken by the husband-respondent, she did not come back for the purpose of leading peaceful conjugal life. She also did not consider the aspects of welfare of the minor child.
It is also observed in the impugned judgment that the petitioner specifically stated that she would not come back to the house of the respondent, if necessary the respondent might come to the house of her father and stay with her in the house of her father.
On such finding, the learned Family Court has given maintenance of Rs. 2,000 per month for the daughter only, the co-petitioner No. 2 but denied any maintenance to the petitioner.

14. Being aggrieved, this present petition has been filed.

15. Mr. Saha, learned Counsel appearing for the petitioner argued that the learned Court below has returned the finding denying the maintenance to the petitioner without proper assessment of the evidence as led by the petitioner, rather whimsically held that the petitioner has deserted the matrimonial home and refused to come back for leading peaceful conjugal life. While returning such finding, the learned Court below was entirely oblivious of the fact that the controversy as perceived or otherwise was razing down the conjugal relation between the petitioner and the respondent. There had been serious allegations of physical and mental torture which deterred the petitioner of going back to the matrimonial home. This cannot be stated as desertion for taking aid of the Sub-section (4) of Section 125 of the Cr.P.C. to deny the maintenance to the petitioner.

16. On the other hand, Ms. Guha, learned Counsel for the respondent, submitted that it is apparent on the face of the record that it is a clear desertion by the petitioner and she is obstinate without any cogent reason not to come back to the marital relation and leading the peaceful conjugal life. As such in view of the Sub-section (4) of Section 125 of Cr.P.C., 1973, learned Family Court has correctly refused the prayer of maintenance of the petitioner. She stoutly supported the finding of the learned Family Court to the effect that—

“it is very much clear that the allegation raised against the opposite party for having illicit relationship with his aunty cannot be believed because the opposite party was brought up and reared by the aunty like the mother and at present the age of the said aunty Smt. Chaya Rani Sarkar is about 55 years and during deposition the said Smt. Chaya Rani Sarkar appeared before this Court and on appearance, she is found very old lady, but the opposite party is a very young person like a son of that aunty and this Court is also in the opinion that there cannot be any bad relationship between the opposite party and the said aunty.”

17. The principle governing the grant of maintenance under Section 125 of Cr.P.C., 1973 is, to a larger extent, is well settled. The basic element which is required to be proved is that the refusal and negligence to maintain the wife or the person by the husband or by the persons as categorised by the Sub-section (1) of Section 125 of the said Code.

18. From the evidence it is overwhelmingly established that there had been a serious discord over the relationship as perceived or otherwise of the respondent with his aunt and over it there had been outbreak of intense quarrel and sometimes of the physical assault. As consequence thereof, there had been several meetings by the well wishers and elders of the families to score out their problems but without any fruitful yield and the petitioner has been able to demonstrate reasonable cause for not her returning to the respondent’s home. It is admitted by the parties in absence of the aunt they were leading peaceful life. If it is shown that the parties are locked in a strife, it is no defence for the husband to say that he is prepared to take his wife back. Unless the root of the discord is removed or the discord is otherwise resolved, it is not expected the petitioner would comprehend that on her return, no such conduct would be repeated. In such situation, her living separately from the husband would not disentitle her from maintenance.

19. The possible step that would have been taken by the husband for bringing about the matrimonial peace was to arrange for separate living of the said aunt but he has not taken such step as yet, except of making promise. Even it appears before this Court that the parents of the petitioner had not reflected on that aspect of the ‘illicit’ relation, the petitioner’s apprehension out of the perceived relationship between the respondent and his maternal aunt cannot be brushed aside. As such, the finding of the learned Family Court that the petitioner has become disentitled from cannot be sustained in law and the yolk of Sub-section (4) of Section 125 of the said Code cannot be availed of by the respondent as the petitioner has been able to rebut the elements of leaving the matrimonial home without any sufficient reason.

20. As such, the impugned judgment is interfered with and the refusal to grant the maintenance to the petitioner in view of Section 125(4), Cr.P.C. is set aside.

21. Ms. N. Guha, learned Counsel for the respondent submitted a certified copy of judgment and order dated 23.3.2012 as passed in T.S. (RCR) No. 69 of 2011 wherein the following ex parte observation has been made by the learned Judge, Family Court, Agartala:

“6. Having regard to the evidence discussed above and also after hearing the petitioner personally, in my opinion, this is a fit case to allow the prayer of the petitioner as it appears that the wife respondent withdrawn herself from the company of her husband without any reasonable cause.”
By the said judgment and order the petitioner has also been directed to restore the marital life and to go matrimonial home for purpose of leading peaceful conjugal life with her husband. For reference the said certified copy as marked as “X” is made part of the records.

22. The clause ‘without reasonable excuse’ as engrafted in Section 9 of the Hindu Marriage Act, 1955 and the clause ‘without any sufficient reason’ as engrafted in Section 125(4), Cr.P.C., 1973 do carry identical meaning and purport but the situations or the contexts are distinguishable in view of the: statutory objects.

23. The judgment as pressed by the respondent was arrived at ex parte as the petitioner did not participate in the proceeding. In absence of any rebuttal evidence having led by the petitioner the said judgment was passed whereas in the impugned order the petitioner led evidence to establish the reason for leaving the matrimonial home and for not returning there. In these two distinguishable situations, the divergent findings are only natural in exercise of power under two asymmetrical jurisdictions. But conflict of findings would generate a further situation for alternation of the order as contemplated directing maintenance. The ex parte decree for restitution of the conjugal rights does not create an absolute bar for passing or sustaining an order of maintenance. In Haizaz Pushaw v. Gulzar Banu, as reported in 2002 Cr.LJ 3382, Kerala High Court held:

“5. On a consideration of the facts and circumstances of this case, I am of the view that the ex parte decree for restitution of conjugal rights obtained by the petitioner against his wife is not an absolute bar to the consideration of the petition under Section 125 of the Cr.P.C. In Ext.D1 there is no finding on the basis of the evidence that the wife had no just or reasonable excuse to withdraw from the society of the husband. The lower Court has found that the petitioner had treated his wife with cruelty while she was in the matrimonial home. The wife is fully justified to stay away from her husband and claim maintenance.”
On consideration of contemporaneity of the said judgment dated 23.3.2012, it would not be proper for this Court to pass an order of maintenance at this stage. However, if the situation vis-a-vis the said ex parte judgment dated 23.3.2012 is altered, the petitioner shall be at liberty to approach the learned Judge, Family Court, Agartala for determination of the quantum of the maintenance and the direction for payment and its mode by virtue of this order. In that event the learned Judge shall determine the quantum of maintenance and the mode of payment in view of the findings as made herein.

With this observation and direction, this revision petition is disposed of.

Revision Petition disposed of.

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