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RAMPADA BISWAS Vs. DOLLY MITRA & ORS.

Judgements favoring men

 
Court:CALCUTTA HIGH COURT

Bench: JUSTICE Ashis Baran Mukherjee

RAMPADA BISWAS Vs. DOLLY MITRA & ORS. On 22 December 1997

Law Point:
Maintenance : West Bengal Amendment : Retrospective Recourse : Sufficient Ground to Be Given — Award of maintenance passed on 24.8.1994 — Such order to be prospective — If Trial Court intends to give retrospective effect reason to be assigned — No reason assigned while giving effect to award at enhanced rate.

 

 

JUDGEMENT

 

The petitioner being the husband of opposite party Mo. 1 has preferred this revisional application read with Section 482 of the Criminal Procedure Code praying for setting aside the order dated 24th of August, 1994 passed by the Chief Judicial Magistrate, Murshidabad in Misc. Case No. 80(iv) of 1988 whereby there was an award of Rs. 750/- per month by way of maintenance on an application preferred under Section 125, Criminal Procedure Code and the order was given effect to from the date of presentation of the application under Section 125, Criminal Procedure Code namely 20th March, 1987.

2. The short history which has given rise to the application under Section 125, Criminal Procedure Code is as follows : The marriage between the parties took place on 27th of February, 1985. On 15th February, 1986, the present petitioner challenged the validity of marriage by resorting to a matrimonial suit with a prayer for annulling the marriage under Section 12(1)(c) of the Hindu Marriage Act. In March, 1986, the matrimonial suit was transferred to the Court of District Judge at Murshidabad on an application by the petitioner who apprehended physical violence from the opposite party No. 1. On 15th of March, 1987, the District Judge, Murshidabad passed an interim order of alimony at the rate of Rs. 300/- per month. On 20th of March, 1987, the opposite party No. 1 preferred an application under Section 125, Criminal Procedure Code before the Chief Judicial Magistrate, Krishnanagar, Nadia praying for maintenance at the rate of Rs. 500/- per month and also succeeded to get an ex parte order of interim maintenance at the same rate on the date of filing itself. On 22nd of April, 1988, the interim maintenance passed by the Chief Judicial Magistrate was saved by the Chief Judicial Magistrate, Nadia on the ground that the petitioner was paying alimony to the extent of Rs. 300/- per month in the Matrimonial Suit. The prayer made on the same day by the petitioner for stay of the proceeding under Section 125, Criminal Procedure Code was however refused. On 23rd of August, 1988, a move was made before the High Court against the Order dated 22nd of April, 1988, but it was rejected with the observation that the petitioner could take recourse to Section 127, Criminal Procedure Code. On 31st of August, 1988, the District Judge, Murshidabad annulled the marriage by decreeing the Matrimonial Suit with the observation that there was concealment of age by the opposite party No. 1 who had practised fraud and deception on the petitioner thereby attracting provisions of Section 12(1)(c) of the Hindu Marriage Act. On 20th of November, 1988, after statutory period for preferring appeal was over the petitioner contracted a second marriage. The opposite party No. 1 in the meantime preferred an appeal against the decree in the Matrimonial Suit and got an order of stay from this Court on 20th of April, 1989. On 24th of May, 1989, the opposite party No. 1 filed an application before the Chief Judicial Magistrate, Nadia for vacating the stay order earlier granted by him but the prayer was refused. A prayer by the petitioner for dropping of proceeding under Section 125, Criminal Procedure Code was however refused by the Chief Judicial Magistrate. Both the petitioner and the opposite party No. 1 moved this Court on 3rd April, 1990 against the order passed by the Chief Judicial Magistrate, Murshidabad at the instance of the petitioner. On 10th of July, 1990, the opposite party No. 1 prayed for recall of the order passed by this Court on 3rd of April, 1990 and also for stay of transfer, both of which were rejected. On 24th of August, 1994, Chief Judicial Magistrate, Murshidabad passed an award of maintenance at the rate of Rs. 750/- per month with retrospective effect from 20th of March, 1987 and Rs. 5,000/- towards litigation cost.

3. The grounds taken in the revisional application amongst others are that the Trial Court did not consider the fact that the opposite party No. 1 was a practicing Advocate inheriting the Chamber of her father, himself a renowned Advocate apart from other incomes, that the Trial Court relied more on surmises and conjectures than on the materials on record, that a maintenance to the extent of more than the claim of the opposite party No. 1 in her application has been awarded, that the implication of decision in the Matrimonial Suit has not been taken into consideration by the Trial Court.

4. The point for determination is whether the impugned judgment of the Chief Judicial Magistrate, Murshidabad suffers from impropriety, illegality or incorrectness.

5. The learned Advocate appearing for the petitioner has raised three points, (1) in view of a decree in the Matrimonial Suit preferred by the petitioner against the opposite party No. 1 declaring the marriage as a nullity in view of the contravention of Section 12(1)(c) of Hindu Marriage Act whether the opposite party No. 1 can be called a divorcee as to get maintenance under Section 125 of Criminal Procedure Code. In support of his contention, he relies on two decisions reported in 1996 Cr.LJ 317, K. Sivarama Krishna Prasad v. K. Bharathi & Anr., and also 1982 Cr.LJ 901, being Krishna Gopal v. Usha Rani. Both are Single Bench decisions of Andhra Pradesh High Court and Delhi High Court respectively dealing with the maintainability of application under Section 125 of the Criminal Procedure Code if the marriage was annulled by a decree in terms of Section 12 of the Hindu Marriage Act. The second point argued is that there is no positive finding that there was neglect or refusal by the petitioner to maintain the wife and that the opposite party No. 1 is unable to maintain herself. The third argument is that since the amendment of Section 125 of Criminal Procedure Code raising the maximum quantum of maintenance from Rs. 500/- to Rs. 1,500/- per month came into existence on 22nd of April, 1993, the Chief Judicial Magistrate made an error in granting retrospective maintenance and that also at the rate of Rs. 750/- per month w.e.f. 20th March, 1987 when the maximum quantum was Rs. 500/-.

6. The learned Advocate appearing for the opposite party No. 1 so far as the first point is concerned submitted that the decree in the Matrimonial Suit has not attained finality since the opposite party No. 1 has preferred an appeal in this Court and has also got an order of stay from the Appellate Court. Regarding the second point, he argues that maintenance at a rate of Rs. 500/- per month would not have been sufficient. He also relied on a decision reported in 75 CWN 932. Regarding the third point the learned Advocate fairly conceded the legal position taken by the learned Advocate for the petitioner.

7. I have given my careful consideration to the submission of both the sides and have also scrutinised the decisions placed at the Bar and also the impugned order of the Chief Judicial Magistrate, Murshidabad which on the face to it is exhaustive in nature. The legal position so far as the right of divorced wife to get maintenance under Section 125 of Criminal Procedure Code has practically been crystallised. The Hindu Marriage Act speaks of a decree in connection with a Hindu Marriage on a number of circumstances. As a matter of fact, there may be a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. There can also be a decree for judicial separation in terms of Section 10 of the Hindu Marriage Act. There may be decree passed in accordance with Section 11 of the Hindu Marriage Act declaring a marriage as null and void. There may be a decree under Section 12 of the Hindu Marriage Act where the marriage was otherwise valid but due to the presence of the ground mentioned in the said section it could be declared as void at the instance of one of the parties to the marriage. There may also be a decree of divorce under Section 13 of the Hindu Marriage Act at the instance of either of the parties for contravention of the different provisions mentioned in the said section. While an application under Section 25(1) maintainable by either party to the marriage and the Court having jurisdiction can pass an order under the section either at the time of passing the decree or at any time subsequent thereto, the scope of an application under Section 125 of Criminal Procedure Code is not so wide. Such an application is obviously guided by Section 125(1) of the Criminal Procedure Code since in case of husband and wife it can be preferred by the wife which includes a woman who has been divorced by or has obtained a divorce from her husband and has not re-married. Thus a wife during the continuance of a valid marriage as also a divorcee in terms of the explanation given in Clause (b) to Section 125(1) of the Criminal Procedure Code are eligible to maintain an application under Section 125 of the Criminal Procedure Code. By implication in the event of a marriage being declared null and void under Section 11 of the Hindu Marriage Act or in the event of a marriage having been annulled in terms of Section 12 of the Hindu Marriage Act an application under Section 125 of the Criminal Procedure Code at the instance of the wife is not maintainable.

8. In the present case it is no doubt true that the marriage between parties has been annulled by a decree passed under Section 12 of the Hindu Marriage Act on 31st of August, 1988 but the admitted position is that the wife has preferred an appeal before this Court and has also obtained an order of stay of the decree appealed against. Therefore, in the eye of law the petitioner and the opposite party No. 1 are still husband and wife so as to claim maintenance under Section 125 of the Criminal Procedure Code provided other conditions relating to granting of maintenance are satisfied. That concludes that first branch of argument.

9. So far as the neglect or refusal on the part of the petitioner to maintain the lawfully married wife or the inability on the part of the opposite party No. 1 to maintain herself is concerned the matter has been discussed elaborately by the Trial Court. So far as the first part is concerned there is the allegation of torture which has been believed by the Trial Court. Regarding the second part, it is also the finding of the Trial Court that the income made by the opposite party No. 1 from the profession is not sufficient for her livelihood in view of her inability to have a footing in the legal profession. Therefore, these being questions of fact which have been decided on the available evidence on record by the Trial Court and there being no infirmity in drawing the conclusion, this Court will not interfere by way of revision.

10. Regarding the third branch of argument, it goes without saying that the order of giving retrospective effect to the maintenance and that also at the rate of Rs. 750/- per month in the face of the amendment to Section 125 of the Criminal Procedure Code having been introduced w.e.f. 22nd of April, 1993 the course is not in accordance with law and also for an interference by this Court since it suffers from illegality and impropriety. The award of maintenance was passed on 24th of August, 1994, ordinarily, such an order is to be prospective in nature but in the event the Trial Court intends to give a retrospective effect reason need be assigned. In the present case, no reason has at all been assigned while giving effect to the award at an enhanced rate which was even against the statute from a period which dated back to more than seven years. Therefore, that portion of the order must be set aside.

11. In the result, I come to the conclusion that at the present stage since the decree in the Matrimonial Suit passed under Section 12(1)(c) of the Hindu Marriage Act by the District Judge has been stayed by this Court and the appeal is pending, an application under Section 125 of the Criminal Procedure Code is maintainable. There being a finding of neglect and refusal by way of torture necessitating leaving of Matrimonial Home and plea of inability to maintain herself founded by the Trial Court on scrutiny of available materials this Court in revisional jurisdiction shall not interfere with the same since the conclusion does not suffer from any infirmity. The direction of the Trial Court to give retrospective operation of the order that also at an enhanced rate of Rs. 750/- per month at a time when even the statute did not empower a Court to make an award beyond Rs. 500/- per month and that also without assigning any reason is an illegality and infirmity which must be struck down. In the result, the revisional application succeeds to the effect that the granting of retrospective operation of the order of maintenance is struck down. In the result the opposite party No. 1 shall continue to get maintenance at the rate of Rs. 750/- per month prospectively from the date of the order of the Trial Court, namely, from 24th of August, 1994. In the absence of any argument on the point of the litigation expense, that portion of the order also stands. The revisional application is accordingly disposed of.

Revision Application disposed of.

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