SHAMBHU MONDAL Vs. MALINA MONDAL

JUDGEMENT

(1.) This is an application challenging the judgment and order dated 22.08.2016 passed by the Learned Judicial Magistrate, 2nd Court, Barrackpore, North 24-Parganas in Maintenance Case No. 106/2008.

(2.) Learned Counsel appearing on behalf of the husband/petitioner submitted as follows. The wife/opposite party had voluntarily left her matrimonial residence. Afterwards she filed an application under Section 125 of the Code claiming maintenance allowance for herself and for her daughter. On 13.08.2008, the Learned Magistrate was pleased to grant interim maintenance of Rs. 800/- and Rs. 400/- per month, respectively to the opposite party/wife and her daughter. On 22.08.2016, the proceeding was finally disposed of by the Learned Magistrate by directing the petitioner to pay Rs. 3500/- per month to the opposite party/wife and Rs. 2500/- per month to their daughter as monthly maintenance allowance under Section 125 of the Code. The petitioner was an employee of a company which suspended its operations with effect from 15.01.2015. As such, it was absolutely impossible for him to pay such sums of money to the opposite party and her daughter. The daughter was an adult and was residing with the wife. The petitioner was also a heart patient and the wife admitted in her evidence that he had suffered heart attack and had to undergo a bypass surgery. In 2017 the husband suffered a cerebral attack and pacemaker had to be installed. The petitioner had earlier prayed for custody of their daughter and as would be evident from the deposition of PW 1, he used to send money to the wife when he was in service. On the other hand, the opposite party/wife committed serious indiscretions including living in adultery and having adulterous relationships with at least three persons. Once she was caught red handed and the paramour had to give an undertaking. Such document was proved by him during the present proceeding. Besides, the criminal case started under Section 498A of the Penal Code by the wife was dismissed because the wife failed to prove her case. The wife herself filed a matrimonial suit seeking divorce in 2016. Since the wife herself deserted the husband without just cause, she could not claim any maintenance allowance. In fact, the wife had independent income of her own. She was working as an agent of the post-office and even carried a business of lending money. On one occasion the wife had to give a written undertaking before the Titagarh Police Station admitting that her mother had made an incorrect complaint against her husband. Reliance was placed on a decision reported in Samima Begum @ Khatun versus Sk. Abdul Rahaman @ Imanur Rahaman, 2006 2 CalHN 753 and it was submitted that it was required to prove neglect or refusal on the part of the husband to maintain his wife in order to sustain an application under Section 125 of the Code. Reliance was placed on a decision Samita Saha versus Mohan Saha & Anr., 2011 2 CalLJ 129 (Cal) and it was submitted that if the wife does not have sufficient ground to live separately, in view of Section 125 of the Code she would not be entitled to receive any maintenance allowance. Reliance was also placed on decisions Gita Das @ Sangita Das versus Tapas Das & Anr., 2004 1 CalHN 237 in this regard. Reliance was also placed on a decision Lata Biswas versus Shanti Ranjan Biswas,2016 4 CalHN 569 (Cal) and it was submitted that while dealing with an application under Section 24 of the Hindu Marriage Act, this Court held that the discretion in granting alimony pendente lite was to be exercised on sound reasoning as regards whether the wife was being supported by an adulterer and whether the wife was ready and willing to go and live with her husband and the husband did not wish to keep her with him.

(3.) Learned Counsel appearing on behalf of the wife/opposite party submitted as follows. After the marriage of the couple in 1996, the wife was tortured mentally and physically. She was mercilessly assaulted for failing to fetch more dowry. Eventually, in the night of 06.03.2008 she was assaulted and threatened with murder. In the morning of 07.03.2008 the petitioner was compelled to take shelter at her mother's place. In the proceeding initiated by her under Section 125 of the Code, the husband filed a written objection, but admitted the marriage as well as the paternity of the child. In the objection, the husband falsely alleged that the wife was having illicit relationships with others, she was a habitual drunkard and was working at a microfinance company. The wife made it clear in her deposition that she was forced to sign on a paper while she was being compelled to leave her matrimonial home on 26.04.1998. Moreover, the document tendered was not marked as an exhibit. So far as the note dated 05.03.2008 purportedly executed by an alleged paramour was concerned, the same was absolutely inadmissible in evidence as no one came to prove it. The husband could not have known his signature and hence, could not have proved the purported document. Similar ought to be the fate of the purported document in respect of husband's allegations that the wife had given loans to some others. A person could not identify the signature of a third party whom he did not know unless and until the said third party was called as a witness. As regards the acquittal of the husband under Section 498A of the Penal Code, the acquittal was due to non-availability of any witness to the proceeding. There, the wife refrained from deposing as at that point she did not want her husband to be punished and put into custody. Moreover, the lodging of general diary entries by the husband did not prove anything more than that the husband was adept in preparing formal safeguards to defend his case. The documents annexed with the supplementary affidavit of the petitioner as regards the ownership of a scooty were self-contradictory. While the vehicle stood in the name of the wife, a challan dated 19.12.2016 was issued in favour of another person. Challan in such cases were issued only to the owner of vehicle. Despite the orders passed by the Learned Trial Court, the petitioner was not paying any maintenance to the wife and the daughter and an execution case was pending in this regard. After being compelled to leave her matrimonial home, the wife had to bear the entire expenses for food, medicine and education of their daughter with the meagre sums provided as maintenance as per Court's order. After a point, even that stopped. The prayer for custody of the daughter was a mere show in as much as the husband never prayed for custody of her daughter when she was a minor. The husband was trying to avoid payment of maintenance allowance to the wife and the child on unsubstantiated, baseless and false allegations.