Arindam Sinha, J
1. Mr. Bose, learned advocate appears on behalf of petitioner-wife. He submits, his client made application under sub-section (1) in section 18 of
Hindu Adoption and Maintenance Act, 1956. Following law declared by the Supreme Court in judgment dated 4th November, 2020 in Criminal Appeal
no.730 of 2020 (Rajnesh -v- Neha and another), there was direction by the Family Court on parties to file affidavit regarding assets and liabilities in
terms directions given therein. Mr. Bose submits, opposite party-husband filed affidavit. His client then filed petition (C.P. no.152 of 2020) praying that
proceeding be launched for opposite party-husband being punished under sections 199/191/193/209 Indian Penal Code, 1860. He submits, the Family
Court by impugned order dated 13th July, 2021 disposed of the petition without initiating the proceeding. Impugned order therefore suffers from
material irregularity and illegality.
2. Mr. Puspalaka, learned advocate appears on behalf of opposite party-husband and relies on impugned order to submit that it is a good order. He
places the last paragraph in impugned order which says that if in course of trial/conclusion of trial it comes to light that such a mischief has been
committed, petitioner will be at liberty to take steps. On that observation, the petition was disposed of. There should not be interference. Mr. Bose
responds, in the petition particulars were given to demonstrate that statements in the affidavit are untrue and incorrect with potential to jeopardize his
client’s claim for maintenance.
3. Sections 193 and 195 in the Code provide punishment for giving or fabricating false evidence with intent to procure conviction of offence punishable
with imprisonment. Section 195 in Code of Criminal Procedure, 1973 by sub-clause (b)(i) says no Court shall take cognizance of, inter alia, any
offence punishable under sections 193 to 196 (IPC) except on complaint writing of the Court. The Family Court while dealing with the complaint had
posted determination of maintenance amount to be paid to a later date and given liberty to petitioner to apply, obviously in event the determination
vindicated her allegation of offence committed under section 193 or 195 or both (IPC).
4. Court does not find that the Family Court acted with material irregularity or illegality in making impugned order since at the stage of complaint made
by petitioner, she cannot presume that the affidavit, allegedly wherein false evidence is given, will be relied upon for what it says. The adjudication
process for determination of maintenance to be paid to her will cause the affidavit to be analyzed for its evidentiary value. It is only on the finding in
the maintenance case that it can be said by Court on a complaint to be thereafter made that it is a fit case for petitioner to be prosecuted.
5. With above observations, the writ petition is disposed of.
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