Biswanath Somadder, J.@mdashHeard the learned Advocates appearing on behalf of the parties.
2. This application u/s 482 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 16th January, 2006, passed by the learned Additional Chief Judicial Magistrate, Serampur, Hooghly, in Miscellaneous Case No. 2 of 2005.
3. By the order impugned, the learned Magistrate proceeded to dismiss the petition of the wife u/s 125 of the Code of Criminal Procedure, inter alia, on the grounds stated therein.
4. The case of the petitioner is that she was married to the opposite party No. 1 on 8th December, 2002 and her marriage was solemnized according to the provisions of the Special Marriage Act, 1954 at Uttarpara, District: Hooghly, West Bengal.
5. The specific case of the wife petitioner is that on 12th July, 2004 at about 10.45 p.m. her husband drove her out from their flat and she had to take shelter at her father''s house, which is also situated at Uttarpara, District: Hooghly, West Bengal.
6. The learned Court below dealt with this aspect of the matter by recording as follows:
...After scanning of evidence I find the parties have allegation and counter-allegation against each other. The petitioner has tried to establish that she compelled to take shelter at her father''s house as she was driven out by her husband on 12.07.04 over the issue that she kept some of her articles at her father''s house. In this regard it is relevant to refer para 14 of the ptn. u/s 125 Cr. PC when there is reflection that the Opp on 12.7.04 drove out her from his flat as the petitioner for want of space and arrangement in the flat removed her garments to her father''s house. On the other hand the Opp in his defence states that on 12.7.04 he returned at home at 10.45 p.m. and found that the petitioner was packing her luggage and without giving any cause left for father''s house.
So, from the allegation and counter-allegation the Court is in dark as to the actual reason of departure of petitioner...
7. The learned Court below has also observed in the judgment and order impugned as follows:
...Further more from the evidence of petitioner I find she did not take shelter of Mahila Samity local people or police authority to that effect. So, considering all, I think the petitioner has failed to prove that the Opp ousted her from the flat...
8. In order to consider whether the impugned judgment and order suffers from an apparent infirmity of application of law or reasoning, there is an imperative necessity to dwell upon the uncontroverted part of the evidence wherefrom it can be noticed that the petitioner-wife left her matrimonial home, i.e., her husband''s flat at 10.45 p.m. at night, all of a sudden.
9. Another aspect of the matter that requires to be taken into consideration is that immediately thereafter she went straight to her father''s residence, which was situated in Uttarpara itself. The learned Court below, however, has made an observation, which has been quoted hereinabove, that the petitioner did not take shelter of the Mahila Samity, local people or police authority. Taking this evidence into consideration as well as the fact that she left her husband''s flat at 10.45 p.m., the learned Court below came to the conclusion that the petitioner had failed to prove that she was ousted from the flat by her husband and further that the Court was in the dark as to the actual reason of departure of the petitioner. The learned Court below has dwelled upon the provisions of Section 125(4) of the Code of Criminal Procedure, 1973. Taking this provision of law into consideration, the learned Court below, inter alia, opined that the wife, being the petitioner herein, without any Justifiable ground, was living separately from her husband and further she refused to lead life in spite of offers made by the husband to live with her. The learned Court below, taking all these factors into consideration, observed that the petitioner had failed to prove her case and hence the proceeding u/s 125 of the Code of Criminal Procedure was dismissed on contest.
10. What falls for consideration in the facts and circumstances of the instant case, is whether, there has been correct appreciation of evidence as available on record by the learned Court below or that irrelevant evidence has been considered with relevant evidence being left out, in order to come to a finding that the wife had been unable to prove her case for grant of maintenance u/s 125 of the Code of Criminal Procedure.
11. While appreciating the evidence available on record in the Court below, the learned Court observed that it was unable to ascertain the actual reason of departure of the petitioner, who left the flat at 10.45 p.m., and further, since no evidence of a strained relationship or torture having been inflicted had been brought out. The learned Court below also took note of the fact that the petitioner did not take shelter of Mahila Samity, local people or police authority, and taking all these into consideration, came to a finding that the petitioner had failed to prove that her husband had ousted her from the flat.
12. It is not clear as to why the learned Court below, in the order impugned, failed to take note of the fact that in a perfectly happy matrimonial relationship, one of the spouses (the wife, as is in the instant case) does not all of a sudden, at that hour of the night, leave her matrimonial flat, unless, of course, there was some compelling reason to do so. The learned court below, while observing that the Court was in the dark as to the actual reason of departure of the wife, failed to take note of this vital aspect of the matter. Moreover, the learned Court below came to a conclusion that the petitioner had failed to prove that her husband had ousted her from the flat because there was no evidence on record of a strained relationship, or torture having been inflicted by the husband and also the fact that the wife, after leaving the flat, did not take shelter of the Mahila Samity, local people or police authority. The uncontroverted fact in the instant case, however, is that the petitioner, all of a sudden, at 10:45 p.m., left her matrimonial flat for some unknown reason and had gone straight to the residence of her father, which was situated in Uttarpara itself. I am of the view that the learned Court below failed to appreciate the evidence in its totality and erroneously came to a conclusion that the petitioner had failed to prove that her husband had ousted her from the flat simply because she did not take shelter of the Mahila Samity, local people or police authority. According to me, the learned Court below took irrelevant evidence into consideration while disregarding relevant evidence.
13. In a proceeding u/s 125 of the Code of Criminal Procedure, the Magistrate is empowered to pass appropriate order for maintenance by directing monthly allowance to be paid, upon proof of neglect or refusal by a person having sufficient means to maintain his wife (as is in the instant case).
14. So far as Section 125(4) of the Code of Criminal Procedure is concerned, the statute provides that no wife shall be entitled to receive such allowance for maintenance or interim maintenance and expenses of proceeding from her husband if she was 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.
15. In the facts of the instant case, however, the learned Court below, for reasons discussed above, failed to appreciate the uncontroverted evidence that the wife, all of a sudden, at 10.45 p.m. left her husband''s flat to go to her father''s house. The learned Court below failed to appreciate that even from the uncontroverted evidence it could not be said that the wife left her matrimonial home at 10.45 p.m. on her own volition and choice, since no married lady, at that hour of night, can simply walk away from her matrimonial home and land up at her parent''s residence, without any compelling reason to do so and thereafter refusing to come back to her husband''s flat to resume/conjugal life.
16. In the facts and circumstances of the instant case, for reasons discussed in detail above, there is no manner of doubt that the learned Court below has erred in appreciating the evidence available on record wherefrom the learned Court has concluded that the wife, without any justifiable ground, was living separately from her husband. The impugned judgment and order, is therefore, not sustainable in law and is hereby set aside.
17. The opposite party No. 1 herein, being the husband of the petitioner, is directed to pay a consolidated amount calculated at the rate of Rs. 700/- per month from the date of last payment of interim maintenance till today, which shall be payable in three equal monthly instalments, first of which shall be payable on the 15th of the next month, beginning 15th March, 2008. The opposite party No. l, in addition thereto, from the date of this order, shall pay month by month Rs. 3,000/- (Rupees three thousand) to the petitioner herein, as monthly allowance under the provision of Section 125 of the Code of Criminal Procedure. This shall be effective from first of March, 2008 and shall be payable by the 15th of each month, beginning 15th March, 2008.
18. The application stands allowed with the directions given hereinabove.
Criminal Section is directed to supply certified copy of this order, if applied for, to the respective parties on priority basis.
