Lipika Dey And Ors vs Babul Kumar Saha

Heard Ms R Purakayastha, learned legal-aid counsel appearing for the petitioner as well as Mr. I Chakraborty, learned counsel appearing for the respondent.

This is a revision petition under Section 19(4) of the Family Courts Act, 1984 from the order dated 20.08.2019 delivered in Crl. Misc. 64 of 2018 by the Judge, Family court, Udaipur, Gomati, Tripura.

The petitioner claims to be the married wife of the respondent and she had to leave the matrimonial home on being physically tortured by the respondent who, according to her, is a "habitual drunkard". That apart, the petitioner was mentally harassed and tortured. The petitioner has further submitted that earlier the respondent married another lady namely, Ashima Banik. Without finding any matrimonial peace, the petitioner had started to live in her parental house. The Petitioner does not have any means to maintain herself and thus she set a proceeding under Section 125 CrPC and also under the Protection of Woman from Domestic Violence Act, 2005 in motion. When the respondent gave an unqualified assurance that he would look after the petitioner, the petitioner went to the matrimonial home but again she was driven out from the matrimonial home being brutally tortured. According to the petitioner, the respondent is a medicine vendor and has steady earning. He is in a position to maintain her but he deliberately neglects to maintain her.

It appears from the impugned order dated 20.08.2019 that the respondent while resisting the claim of the petitioner herein, has stated that the petitioner is the married wife of one Goutam Sarkar and that marriage is still subsisting. Apart that, the petitioner had developed an illicit relation with another person. The name has been reflected in the said order. That person, according to the respondent, is a jawan of the Border Security Force (BSF). According to the respondent, the petitioner stayed with that person for five months in Punjab and Silchar. The respondent filed a complaint on elopement being Cr.07(CC)2016 in the court of the Chief Judicial Magistrate, Udaipur under Section 366/342/323/380 of the IPC. The respondent has stated that their minor son is living with him.

On recording the evidence, both oral and documentary [vide the testimonies of the petitioner (PW1), one Rina Dey (PW2), one Subhankar Das (PW3) and the respondent (OPW1), one Pratima Das (OPW2) and Swadesh Das (OPW3)] the family court passed the impugned order.

According to the petitioner, their marriage was solemnized on 28.11.2009 as per Hindu rites and customs at Matabari Temple and from that wedlock their son was born. It has been also stated by PW1 that she had lodged a complaint against the respondent for committing offence punishable under Sections 494 and 498A of IPC. However, the respondent was acquitted from those charges.

The former petition for maintenance was settled on compromise and disposed of, but when subsequently she was again driven out of the matrimonial home, she instituted the present proceeding being Cr. Misc. 64 of 2018. According to the petitioner, the respondent earns Rs.20,000/- per month. As proof of marriage, the petitioner has submitted the certificate of marriage dated 31.10.2015 which was admitted in evidence, however, subject to objection.

It has been recorded in the impugned order that the petitioner had admitted that on 08.04.2016 she went to the house of that BSF personnel at Belonia and she went there with her mother, son and Pratima Das, who is the sister of the respondent.

There is no dispute that the petitioner and the respondent lived together as husband and wife for six to seven years continuously. Now, the petitioner is living in her parental home without being cared by the respondent. This Court made an attempt to reconcile the differences. Even though the petitioner is still agreeable to join the matrimonial home but the respondent is obstinate in taking her back on the ground that she had lived a life in adultery and she is the married wife of some other person, namely, Goutam Sarkar.

In course of hearing, Ms R Purakayastha, learned counsel has produced the photocopy of the judgment dated 18.01.2017 in Title Suit (Divorce) 100 of 2006 [Smt. Lipika Sarkar vs. Sri Goutam Sarkar] from which it appears that the marriage with Goutam Sarkar was solemnized in the month of July, 2000 and out of that marriage one female child was born on 16.09.2002 who at the time of granting the decree of divorce was 4 years old. The decree of divorce was issued on 18.01.2007. In the open court, Mr. Chakraborty learned counsel for the respondent has submitted that the respondent was totally unaware of such development and that fact had been concealed from the respondent.

Be that as it may, on the basis of the records, at least it cannot be said prima facie that the marriage is invalid. However, this is a prima facie observation. If the respondent is seriously aggrieved by the marriage, he may approach the civil court of the competent jurisdiction for declaration, etc. in respect of the marriage. A jurisdictional court while dealing with the issue of maintenance, cannot decide the validity of marriage.

Mr. Chakraborty, learned counsel appearing for the respondent has further submitted that the respondent since has discovered that the petitioner was the married wife of someone else (Goutam Sarkar) and she was living in adultery with a BSF personnel whose name has been recorded in the impugned judgment, the respondent will not live with the petitioner and this is not an unreasonable excuse. On the contrary, Mr. Chakraborty has emphatically submitted that the conduct of the petitioner would disentitle her from getting any maintenance in view of Section 125(4) of the CrPC.

Having appreciated the evidence as recorded and the finding on the basis of appreciation of such evidence, this Court does not find any evidence in respect of subsistence of marriage with someone else or the fact "to live in adultery". One act of adultery will not disentitle the wife from getting maintenance by importing the provision of Section 125(4) CrPC, inasmuch as the interpretation of the clause that has been engrafted in that section i.e. „living in adultery‟ cannot and does not mean one act of adultery.

On the contrary, it should be the continuous act of adultery. No such evidence is available on records to infer „living in adultery‟. Moreover, prima facie materials are in abundance to show that the matrimonial life of the petitioner was seriously at stake for the conduct of the respondent. Even the respondent has categorically stated by adducing evidence that he would not take back the petitioner. Even he has not come forward with any proposal for maintenance.

Thus, this Court is of the view that the observation and finding of the Judge, Family Court, Udaipur is not maintainable and hence, it is interfered with and set aside.

The respondent is directed to pay sum of Rs.2,500/- per month to the petitioner w.e.f. 01.02.2020. The said monthly allowance, as maintenance, will be payable by every 10th day of English calendar month else serious punitive action would follow against the respondent. Such money shall be remitted to the petitioner by Money Order or the same can be remitted to the account of the petitioner, if the petitioner furnishes the bank details to the respondent.

In the result, this petition stands allowed and disposed of.

Before parting with the records, this Court would note that any finding returned by the order would not come in the way if the respondent questioned the validity of the marriage in the civil court of the competent jurisdiction.

Copy of the order by supplied to the counsel for the parties free of cost.