SAGINA BEGUM Vs. KASHEM ALI

JUDGEMENT

(1.) This revisional application is directed against an order dated 2.9.98 passed by the learned Judicial Magistrate, 2nd Court, Rampurhat, Birbhum, whereby the learned Magistrate was pleased to dismiss an application for maintenance under Sec. 125 Code Criminal Procedure by the wife Sagina Begum. Being aggrieved and dissatisfied with the impugned order dated 2.9.98 the said Sagina Begum has made this revisional application before this Court praying for setting aside the said order of the learned "Magistrate and for a maintenance allowance of Rs. 1,500.00 per month from the O.P. husband, Kashem Ali.

(2.) The parties are husband and wife with their marriage having taken place on 28.6.92 according to Muslim Shariat. Two female children were born to them, one of whom is, however, dead. The petitioner-wife has alleged that she was physically and mentally tortured for not meeting the demand of money and was driven out with the child from her matrimonial home by the O.P. husband. She has further alleged that her husband did not take care to get any information about her, neglected to maintain her though he had income from his landed property and earning of Rs. 4,000.00 working as a rajmistry. The O.P. husband had denied the material allegations of physical and mental torture upon his wife and had contended that she left his house out of his own will and volition, that he was quite keen to take back the petitioner-wife in his house and as a matter of fact, brought a suit being Mat. Suit No. 9/97 for restitution of conjugal life.

(3.) The points for determination before the learned Magistrate whose judgment and order have been assailed in this revision were, whether the petitioner-wife had been neglected by the O.P. husband and whether the petitioner-wife was entitled to get maintenance from the husband. I have carefully gone through the impugned order of the learned Magistrate. I find that his was a decision with sufficient reason. Normally, the High Court is loathe to interfere with the findings of the learned Court below on facts, unless manifestly there are some gross illegality causing grave miscarriage of justice to the aggrieved party. I am afraid, there is none of this kind present there in the impugned judgment and order of the learned Magistrate. It is true that there was an allegation of assault on the petitioner-wife by the husband at her matrimonial home but it is also true that the husband also tried to take his wife, that is the petitioner, back to his house and admittedly he had got a decree for restitution of conjugal right in Mat. Suit No. 9/97 which was marked as an exhibit before the learned Court below. The Civil Court found no lawful excuse on the part of the wife for refusing to go to her husband's house. The learned Magistrate also considered in his judgment several facts and circumstances that had appeared in the evidence adduced by both sides and on a proper assessment of the evidence and the circumstances came to the conclusion that the petitioner-wife was not entitled to get maintenance by virtue of Sub-section 4 of Sec. 125 Code Criminal Procedure which said that no wife shall be entitled to receive an allowance from her husband under Sec. 125 Code Criminal Procedure if, without any sufficient reason, she refused to live with her husband. Indeed, we find that the wife's refusal to live with her husband is not backed by sufficient reason. I am not inclined to interfere with the impugned order of the learned Magistrate dismissing the application of the petitioner-wife under Sec. 125 Criminal Procedure Code.