Rina Sarkar Vs. Paritosh Sarkar And Another

Court: CALCUTTA HIGH COURT

Bench: JUSTICE Nripendra Kumar Bhattacharyya

RINA SARKAR Vs. PARITOSH SARKAR AND ANOTHER On 18 May 1994

Law Point:
Alleged mal reatment/torture not proved by Wife. Maintenance denied.

JUDGEMENT

By this revisional application under Article 227 of the Constitution of India read with Section 483 of the Code of Criminal Procedure, 1983 the wife-petitioner challenged order No. 2 dated 10th June, 1993 passed by the learned Sessions Judge, Howrah rejecting her revisional application moved against the order of the learned Magistrate rejecting her prayer for maintenance.

2. The wife in her application before the Magistrate under Section 125 of the Code of Criminal Procedure, inter alia, alleged that her marriage with the opposite party was solemnised according to Hindu Rites and Customs on 20th May, 1987 and their marriage took place at village Nischindapur P.S. Bally, District-Howrah. Since after her marriage she went to reside at her husband’s place of work at Moghal Sarai where the husband worked as a Railway employee. From the very beginning of their conjugal life the husband-opposite party ill-treated her both physically and mentally. A male child was born to them out of their wedlock who was aged about 3 years on the date of the application. The petitioner tolerated everything with the expectation that ultimately good sense would prevail upon her husband but that expectation was belied. As the torture became unbearable to her, she wrote several letters to her old and ailing parents expressing her intention to commit suicide. Then with the help of a search warrant she and her minor son were recovered from the residence of her husband. Since that time she along with her son are residing in her parent’s house. The husband did neither maintain her and her minor child nor did look after their well being. She further alleged that the monthly income of her husband was approximately Rs. 2.500/- and she claimed maintenance at the rate of Rs. 400/- per month for herself and her son.

3. On that application Misc. Case No. 156 of 91 was started in the Court of 5th Judicial Magistrate, Howrah and the petitioner in order to substantiate her allegation examined 3 witnesses including herself. Petitioner is P.W. 1. P.W. 2 Niranjan Roy is the sister’s husband of the petitioner and Nilmony Roy P.W. 3 is the brother of the petitioner. While the husband examined 3 witnesses including himself. Husband is O.P.W. 1. O.P.W. 2 Rajendra Prasad Shaw is a practising lawyer in the criminal Court, Howrah and O.P.W. 3 Sanjiv Kumar Sarkar is the elder brother of the husband.

4. The learned Magistrate after considering the evidence of the parties and after hearing the arguments of the learned Advocate for the parties and considering the other materials on record granted maintenance to the minor child of the petitioner at the rate of Rs. 300/- per month but did not grant any maintenance to the petitioner. The petitioner moved the Court of the learned Sessions Judge, Howrah in revision but in vain. Hence this revision.

5. The learned Advocate Mr. Swapan Kumar Mukherjee for the petitioner has contended that the order of the learned Sessions Judge is perverse and as such the order should be set aside.

6. Sub-section 4 of Section 125 of the Code of Criminal Procedure, 1973 enjoins that :

“No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

7. In view of that Sub-section a wife is not entitled to receive an allowance from her husband under Section 125, if she is living in adulterating left her matrimonial home without any sufficient reason and refuses to live with her husband or if the couple are living separately on mutual consent.

8. The learned Magistrate in his order found that the petitioner left her matrimonial home without any sufficient reason and she refuses to live with her husband, the opposite party. In coming to such a finding he considered the evidence of the wife in its proper perspective and also noted from her deposition that she is willing to live with her husband if the opposite party stays at Calcutta with her. The learned Magistrate also observed that the factum of torture on her by the opposite party and his family members have not been disclosed to the neighbouring Bengali families who reside within the same campus. This appraisal of evidence by the learned Magistrate has not been interfered with in revision by learned Sessions Judge as he found that there was no perversity in such appreciation of the evidence by the learned Magistrate and as there was no other illegality in the matter. The Supreme Court in the case of Bakulabai v. Gangaram, reported in (1988) 1 SCC 537, 540, inter alia, observed that :

“The other finding of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence and should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the Revisional Court were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate.— — —”

9. So in revision reappraisal of the evidence as recorded by the learned Magistrate is not permissible under the law unless such appraisal is perverse and illegal. The Revisional Court below did not find any perversity or illegality in appraisal of the evidence or any illegality in the judgment of the learned Magistrate.

10. After considering the evidence for the parties and other materials on record I also do not find any perversity or illegality either in the evidence or in the judgment of the learned Magistrate warranting interference with the order passed by the learned Magistrate and with the order impugned of the learned Sessions Judge.

The revisional application is thus dismissed.

Revision Application dismissed.