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Judgment
The impugned order dated 12th November, 2018, passed by learned Additional District and Sessions Judge, Bolpur, Birbhum, in Criminal Revision No.4 of 2017, dismissing the criminal revision and thereby affirming the order passed by the learned Chief Judicial Magistrate, Bolpur in Misc.Case No.46 of 2016 granting maintenance at the rate of Rs.3,500/- per month for the minor son simultaneously refusing monthly maintenance for the wife- revisionist in connection with a proceeding under Section 125 Cr.P.C. is the subject matter of challenge in this revisional application filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure.
Learned advocate for the revisionist-wife submits that since the wife left her matrimonial home in a compelling circumstances for an illicit affairs of her husband with a woman, which could not be perfectly appreciated by both the courts below while refusing the order of maintenance to wife/revisionist. Thus, according to the revisionist staying apart of wife/revisionist was for just and sufficient reasons, the narration of which was reflected in the petition under Section 125 Cr.P.C. praying for maintenance.
The opposite party/husband repelling the contention of the revisionist submits that in application of the provision of sub-section (4) of Section 125 Cr.P.C. the learned Magistrate proceeded to refuse the maintenance for the wife, which was affirmed by the learned Additional District and Sessions Judge in connection with Criminal Revision No.4 of 2017. Though the revisionist/wife levelled a blame allegation against her husband of having illicit affairs with a woman, but the same could not be proved during trial by producing cogent evidence, or even by corroborating the evidence adduced so far by the wife on this issue. Thus, according to o.p./husband, there is nothing left satisfactorily to intervene into the situation so as to favour the wife with an order of maintenance.
According to learned advocate for the o.p./husband the wife/revisionist is a suspicious and quarrelsome by nature. The allegations hurled against the husband being based on suspicion could not be proved in evidence, and learned Magistrate duly appreciated the same in the light of the evidence adduced before it.
Undoubtedly the revisionist is the legally married wife of o.p./husband, who is a Government employee working as Bit Officer under Forest Department. A male child was born to them out of their wedlock. Further, admitted position is that wife has been living away from her husband since 26.2.2016. The wife is having no source of her income to maintain herself.
The object of providing maintenance to wife is to secure a lady from being destituted after being oppressed by her husband on the grounds specifically shown in Section 125 Cr.P.C. The grant of maintenance allowance is subject to proof of torture, neglect and refusal, as embodied in Section 125 Cr.P.C. The o.p./husband working under Forest Department is posted as Bit Officer. In course of adducing evidence, the wife admitted that her husband had to perform 24 hours duty, and for that reason the husband was under obligation to leave the quarter of and on, and further to address the problems faced by the Bon Suraksha Committee where females are mostly employed. Thus, in connection with the discharge of official duties, the husband had to make phone calls to the female members of the Bon Suraksha Committee in order to address their problems. It was in this circumstances, learned Magistrate, while refusing the maintenance allowance for wife, proceeded to observe that it was quite usual that the husband in connection with the discharge of his job would contact several female members of Ban Suraksha Committee, and the learned court below disbelieved that the o.p./husband being a Bit Officer maintained illicit relationship with any female members of Bon Suraksha Committee for want of corroboration of evidence, produced by the revisionist/wife. The revisional court while affirming the decision, reached by the learned Magistrate, proceeded to hold that there was no evidence adduced on the side of the revisionist-wife to prove and/or to establish the contention of the illicit relationship of o.p./husband with a lady, far to speak of any corroborating evidence to that effect.
The revisional court had taken note of the provisions of Section 125(4) of Cr.P.C. and held that that there was nothing to establish neglect by the husband to wife on justified reasons.
The argument raised by the revisionist is that since Section 125 of the Code of Criminal Procedure is a measure of social justice and is specially enacted to protect woman and children and falls within the constitutional sweep of Articles 15(3) reinforced by Article 39 of the Constitution, both the courts below committed wrong in not granting maintenance in the light of the decision reported in C.R.R.670 of 2001 rendered in the case of Abdul Latif Mondal vs. Anuwara Khatun & Anr. by a Coordinate Bench of this Court.
In this case, the son born out of their wedlock was favoured with maintenance at the rate of Rs.3,500/- per month.
The High Court would seldom exercise its discretion in application of Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure in a case where the discretion available to the court below in the matter of granting or refusing maintenance was not properly exercised in the given set of facts presented before it. When the order refusing maintenance to wife was recorded giving reasons in the light of evidence adduced, there is hardly any scope for this Court to conclude with all certainty that the discretion available before the court below was not exercised rationally, reasonably and further that discretion was exercised in a capricious manner ignoring the evidence and also upon taking irrelevant consideration not pertaining to the text.
It is a trite law that the statutory right granted under Section 125 Cr.P.C. is a measure to ensure social justice in a given set of facts subject to fulfillment of torture, neglect and refusal by the husband as regards the wife, and the children born out of their wedlock. The liability to establish a case within the peripheries of law in terms of the requirement of Section 125 Cr.P.C. is not waived at all, while claiming maintenance from her husband. The story developed by the wife in support of the prayer for maintenance that she was compelled to leave from her matrimonial home for just reasons for the adulterous involvement of her husband with a woman could not be satisfactorily proved in the evidence. Thus, living apart by wife not being permitted by just reasons/sufficient reasons, the revisional court upheld the findings reached by the learned Magistrate, while refusing the prayer for maintenance as regards wife. Though the wife has no sufficient income of her own to maintain herself, but when her staying apart was not satisfactorily explained by showing sufficient reasons/just reasons upon proving the same in evidence, the court is not supposed to be swayed away upon merely taking a fact that the wife is having no income of her own at the moment to support herself. Since the revisional court duly and rightly exercised the power available while exercising revisional jurisdiction, the decision reached by the revisional court cannot be termed to be perverse. The impropriety of the order thus cannot be doubted in any manner in the present context of this case. The revisional application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure is, thus, without any merits.
The revisional application fails.
Urgent certified photostat copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.