Biswanath Chatterjee vs Kabita Chatterjee

Arun Kumar Bhattacharya, J.—The present revisional application u/s 401: read with Section 482 Cri. P. C. is directed against the order dated 30.01.2002 passed by the Id. Judicial Magistrate, 3rd Court, Durgapur in Misc. Case No. 144/1997 u/s 125 Code of Criminal Procedure

The circumstances leading to the above application are that the O.P. is the legally married wife of the Petitioner, their marriage having taken place on 22.11.1991. On 25.06.92 the Petitioner along with the O.P. came to the house of the elder brother of the O.P. and left her there and since then he did not take any information about her. The Petitioner as a permanent employee of Eastern Neptha Chemicals earns Rs. 6000/- p.m. She initiated the aforesaid Misc. Case u/s 125 Cr.P.C. claiming Rs. 1500/- p.m.

The above allegations were denied by the present Petitioner/O.P. contending that the marriage-tie between them has been dissolved by a decree of divorce passed by the Id. District Judge, 24 Pgs. (N), Barasat on 03.03.94 and that he works as a day labourer.

Two witnesses on behalf of the present O.P. while one witness on behalf of the present Petitioner were examined and after considering the facts, circumstances and materials on record, the Id. court below by the impugned order awarded maintenance to the tune or Rs. 1000/- p.m.

Being aggrieved by and dissatisfied with the said order, the Petitioner/O.P. has come up before this revision.

As none appeared for the O.P., the matter was heard ex parte.

Mr. Mukherjee, Id. counsel for the Petitioner, assailed the impugned order of maintenance as excessive contending that as no document showing his client as an employee of Eastern Neptha Chemicals and earning Rs. 6000/7000/-p.m. was produced on behalf of the O.P./wife and his client being a daily labourer may be considered to be earning Rs. 2900/- p.m. as per provisions for the Payment of Wages Act and it is the evidence of P.W. 1 that she worked as a nurse for 3/4 months and can earn much little than Rs. 200/- p.m. out of tuition, the amount of maintenance to be awarded should have been commensurate with the earning and paying capacity of the Petitioner.

To sustain an application u/s 125 Cri.P.C. filed by wife, two out of three essential ingredients are viz (1) she is unable to maintain herself and (2) husband has sufficient means.

So far as the first ingredient above is concerned, the expression "unable to maintain herself" connotes that the wife has no other means or source to maintain herself. It has nothing to do with her potential earning capacity. Inability of the wife to maintain herself cannot be judged in the light of her capacity to make a living. So, merely because it is the evidence of the present O.P. (P. W. 1) that she worked as a nurse for 3/4 months and that she can earn much little than Rs. 200/- p.m. as a private tutor cannot be construed to mean of her possessing sufficient mens to maintain herself.

As regards the second ingredient above, it is well settled that "means" does not signify only visible means, and if one is healthy and able bodied he shall be held to have sufficient means to support his wife. It includes the capacity to earn, and the on us is on the husband to show want of means. In the present case, there is nothing to suggest that the present Petitioner is of weak health, and so he supposed to have sufficient means to support his wife. If the above contention of Mr. Mukherjee regarding earning of the Petitioner of Rs. 2900/- p.m. as a day labourer as per provisions of the Payment of Wages Act is taken into account, it cannot be said that the above amount is insufficient.

The word "maintenance", which should not be narrowly interpreted, means the most reasonable requirement for the existence of a person to live separate, and accordingly the expenditure, broadly speaking, not only includes on food, clothing and residence but also medical expenses. The concept of providing a wife merely with food, clothing and lodging as if she is only a chattel and has to depend on the sweet-will and mercy of the husband has now become completely outdated and absolutely archaic, as was observed in the case of Sirajmohamedankhan v. H. Yasinkhan 1981 Cri. L. J. 1430 (S.L.) For determining the quantum of maintenance, the needs and requirements of the wife for a moderate living, the earnings of the husband and his capacity to earn, his commitments and the status of the parties are relevant factors.

Considering the above aspects, maintenance to the tune of about 1/3rd of the income may be considered to be just and equitable and from this perspective and taking into account the trend of rising prices of every essential material day by day the amount of Rs. 1000/- so awarded by the Id. court below does not appear to be unjust and unreasonable at all and so the impugned order does not call for any interference.

Accordingly, the revisional application be dismissed ex parte.

The impugned order passed by the Id. court below is hereby affirmed.

Let a copy of this order be sent down at once to the Id. court below.

Urgent Xerox certified copy of the order, if applied for, be supplied to the Petitioner with utmost expedition.