S.P. Talukdar, J.@mdashThe Petitioner, Soma Mullick, by filing the instant application under Sections 397/401 read with Section 482 of the
Code of Criminal Procedure, has prayed for setting aside of the order dated 8th April, 2008 passed by the learned Second Court of Judicial
Magistrate, Howrah, in Misc. Case No. 186 of 2002.
2. The backdrop of the present case may briefly be stated as follows:
The Petitioner approached the learned Court of Magistrate with an application u/s 125, of Code of Criminal Procedure claiming maintenance. In
the said petition, it was submitted that the marriage was solemnized between the Petitioner and the opposite party No. 2 in the house of her father
at Andul on 27.7.1994 according to Hindu rites and customs. After marriage, the Petitioner was taken to her matrimonial home but she was not
accepted by opposite party No. 2, his mother and two married sisters. Apart from criticizing her parents and other relations, they also used to
express their disgust regarding the quality of the ornaments as well as other articles given at the time of the marriage; they used to abuse the
Petitioner in filthy language. The Petitioner waited with the expectation that the complexion might gradually change in her favour opposite party No.
2 was totally indifferent to her and even did not allow the Petitioner to share the same bed. The Petitioner was denied access to her relatives and
friends. All of a sudden the Petitioner was once taken to a doctor and was compelled to undergo abortion. When she conceived for the second
time, O.P. No. 2 openly declared that he would not shoulder any responsibility. The Petitioner was, thus, subjected to consistent neglect and
humiliation. The Petitioner was given a false impression that O.P. No. 2 had done M.Sc. in Chemical Biology and was working as a Junior
Scientific Officer in the Institute of Chemical Biology at Jadavpur drawing a salary of Rs. 17,000 per month. It, however, transpired that he was a
Junior Laboratory Assistant. O.P. No. 2 repeatedly threatened to divorce the Petitioner and was subjected to cruelty in various forms. Being left
with no option, she had to take shelter at her paternal home. Her husband never took any step for taking her back nor did he pay any maintenance.
3. The case was transferred to the learned 2nd Court of Judicial Magistrate, Howrah. After taking into consideration the evidence on record and
other relevant facts and materials, learned Court by order dated 8th April, 2008 rejected the application for maintenance and directed the
Petitioner to refund the interim maintenance received by her.
4. The Petitioner filed an application u/s 13 of the Hindu Marriage Act praying for a decree of divorce. The same was registered as Mat Suit No.
240 of 2002. She also filed an application u/s 24 of the Hindu Marriage Act in the said suit, thereby praying for alimony pendente lite. Learned
Court by order dated 7th August, 2007 granted maintenance to the tune of Rs. 3,000 per month and a further sum of Rs. 5,000 as litigation cost.
5. Being aggrieved by and dissatisfied with the order dated 8th April, 2008 passed by the learned Magistrate, the Petitioner approached the Court
for redressal of his grievance.
6. Steps for service of notice and copy of the application upon the O.P. No. 2 were duly taken. None, however, appeared for the said O.P. &o.
2. Mr. Ganguly, appearing as learned Counsel for the Petitioner, sought to assail the order dated 8.4.2008 on the ground that the learned Court
failed to appreciate the evidence on record in its proper perspective.
7. It appears from the materials on record that the parties before the learned Court examined themselves as witnesses in support of their respective
claims. Learned Court, after analyzing the evidence on record, found it difficult to accept the allegation that the Petitioner was subjected to torture,
mental or physical, at her matrimonial home. It could be that disparity in the standard of life of the two families, i.e., the family of the Petitioner prior
to her marriage and that of O.P. No. 2 could be at the root of the disputes and differences but the same took the shape and form of antagonistic
contradictions since there had been no fruitful reconciliation. Learned Court found that the present Petitioner left her matrimonial home in 1995 and
took away of her personal belongings. This had not been effectively denied by the petitioner. She even expressed her dissatisfaction in respect of
the marriage and admittedly she had filed a suit for divorce seeking dissolution of marriage. Learned Court appears to have placed reliance on a
document, being marked Exhibit A, while observing that the said document could reflect the intention of the Petitioner to severe her marital ties
with O.P. No. 2. The said document had not even faced any challenge. Learned Court, thus, found that there could be no sufficient ground for the
Petitioner to live separately and away from O.P. No. 2. In absence of any reasonable ground justifying such separate stay, as held by learned
Court, the Petitioner certainly could not be entitled to get any maintenance from O.P. No. 2.
8. Mr. Ganguly in course of his submission, referred to the decision of Division Bench of the Bombay High Court in the case between Mustafa
Shamsuddin Shaikh Vs. Shamshad Begum Mustafa Shaikh and others, . He referred to the observation made by the learned Bench that ''a right to
claim maintenance under the Code is not dependent upon who was right and who was wrong in the matrimonial disputes. The Magistrate is duty
bound to award maintenance once it is found that the wife is unable to maintain herself and her husband has means but still neglects or refuses to
maintain the wife.
9. He further referred to an earlier decision of the learned Single Bench of this Court in the case between Atashi Sen v. Jayanta Sen and Anr. as
reported in 2001 CCR (Cal) 387. Learned Court in the backdrop of the said case held that the husband also simply because he offered the wife to
live with him, cannot escape from his liability to maintain his wife.
10. Apart from the fact that the factual matrix of the cases, as referred to, is significantly different from that of the present one, it may be mentioned
that ""every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions
which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in
which such expressions are to be found. Ref. Quinn v. Leathern (1901) ACC 495.
11. Moreover, it is worth mentioning that none of the decisions as relied upon by Mr. Ganguly, seems to have effectively dealt with Sub-section (4)
of Section 125 of the Code of Criminal Procedure The same reads:
(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may
be,] from her husband under this section if she is 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.
12. In the present case, there is absolutely no material so as to establish that the Petitioner has any sufficient reason to live separately. It rather
shows that she had refused to live with her husband and that too, without any justifiable reason.
13. This Court quite well appreciates that our society is not free from gender discrimination. No doubt, the law enforcing agencies and those linked
up with administration of justice are required to be properly sensitized. But even after giving a long rope, this Court fails to find any sufficient
material so as to justify grant of any maintenance in favour of the present petitioner.
14. The impugned order does not seem to suffer from any impropriety or infirmity which can justify interference by this Court. But so far as the
direction for refund of the interim maintenance is concerned, I think it will be too harsh and the said direction is set aside. The impugned order is
only modified to the said extent.
15. The present application being C.R.R. No. 2408 of 2008 stands accordingly disposed of.
Criminal department is directed to supply certified copy of this judgment if applied for, as expeditiously as possible.