AMULLYA RATAN LAHA Vs. BHAKTI PUSPA LAHA

JUDGEMENT

(1.) THIS criminal revision is directed against the judgment and order dated the 31st July, 1992 passed by the learned Additional Sessions judge, 2nd Court, Midnapore in criminal Motion No. 127/89. By his impugned order the learned Additional sessions Judge set aside the order dated 16th May, 1989 passed in M. R. Case No. 36/87 by the learned Chief Judicial Magistrate. By the said order the learned Chief Judicial Magistrate rejected the application of the wife under Section 125 Criminal Procedure Code for maintenance. The learned additional Sessions Judge however by his impugned order granted maintenance to the wife at the rate of Rs. 400/- per month from the date of filing of the application under Section 125 Cr. P. C. Earlier the wife in a civil suit, viz. O. S. 29/55 of the 2nd Court of Subordinate Judge, Midnapore obtained an order of maintenance at the rate of Rs. 80/- per month for herself against the husband. Subsequently the husband filed a Suit being T. S. No. 23/80 of the 1st Court of Subordinate Judge, Midnapore and obtained an ex parte decree against the wife. By that decree the husband obtained a declaration that the decree for maintenance passed against him in O. S. 29/55 was no longer binding on him and that the wife and the child were not entitled to get maintenance from him. It may be mentioned here that the child has since become major and the question of maintenance of the child is not a matter for consideration now. In the said suit the husband also got a permanent injunction restraining the wife from proceeding with the execution of the said decree of maintenance. The said ex parte decree was obtained by husband on 14th February 1989 It may be mentioned here that the father of the wife died leaving properties On the basis of a will alleged to have been executed by the father of the wife in favour of her brother a probate was obtained. Subsequently however it seems, the said probate was challenged on the ground that the will was forged and the probate was ultimately revoked. The litigation in that respect in its onward journey, as I understand, is still pending in the High Court.

(2.) BE that as it may, it appears that the maintenance decree earlier obtained by the wife in a civil suit was ultimately neutralised by the decree passed in the subsequent suit of the husband brought on the ground that on the revocation of the probate the wife inherited 1/6th share in the property left by her father. It was because of such changed circumstances the husband in the subsequent suit obtained the declaration that the wife was not entitled to get maintenance from the husband and the earlier decree was no longer binding on him. The learned Chief Judicial Magistrate rejected the application under Section 125 Cr. P. C. mainly on the ground of the said decree of the civil suit. The learned Additional Sessions Judge however held that the wife was entitled to maintenance. It appears that as regards, the question of having 1/6th share in the joint property of the deceased father of the wife, the learned Additional Sessions Judge was of the opinion that in ordering any maintenance the court shall have regard to the income of the applicant and not to her assets not yielding any return. The learned Advocate for the petitioner has relied upon the statement of the wife in evidence that from the property left by her deceased father there is income by way of rent from the tenants to the tune of rs. 6000/ -. The learned Chief Judicial Magistrate in his judgement took note of that statement in deposition and then made his conclusion that the wife having 1/6th share has however a monthly income of not less than Rs. 1000/ -. The learned Advocate for the petitioner also attracted my attention to a recent decision of this court in Shiv Shankar vs Sobhana Samanta, 1992 Cri. L. J. 2196 in support of his argument that the learned Additional sessions judge should not have set aside the finding and order of the learned Chief Judicial Magistrate without making any critical study of the evidence and without adverting his attention to the analysis of the evidence as made by the learned Magistrate in arriving at his finding. I however find that the learned Additional Sessions Judge in the present case has adverted his attention to the analysis made by the learned Chief Judicial magistrate and also made a critical study of the evidence. The mere fact that theoretically the wife may have 1/6th share in the joint property left by her father yielding a total income of not less than Rs. 6000/- per month is by itself not sufficient to hold that the wife is actually getting her share of income from the joint property which is still under litigation, as it appears from the judgement of the learned Additional Sessions Judge. The wife also does not seem to be in actual control or possession of the joint property. In the circumstances, even if it is assumed that theoretically the wife has 1/6th share in the joint property left by her father that does not necessarily lead to the conclusion that she has sufficient means to maintain herself unless it is proved or reasonably made to appear that she is deriving or getting her share of income from the joint property. In the circumstances. I find no reason to interfere with the finding of the learned additional Sessions Judge regarding the present need of maintenance of the wife.

(3.) IT has been also argued by the learned Advocate, for the petitioner that in view of the finding in the title suit brought by the husband, the wife is not entitled to maintenance. It has also been argued by the learned advocate for the petitioner husband that in view of the earlier decision of the civil court the learned magistrate in the proceeding under Session 125 cr. P. C. , was not entitled to grant maintenance and accordingly he rightly rejected the prayer or maintenance. In support of his such submission he has also relied upon the decision of a single Bench of the Bombay High court in Murlidhar vs. Protiva, 2986 Cri. L. J. 1216. There is no doubt that if an issue has been decided on merit by a Civil Court in a properly constituted suit between the parties, the same may operate as res judicata in appropriate cases. But it will be seen here that in the earlier suit between the parties fought at the instance of the husband what was held was that in view of the changed circumstances the earlier maintenance decree was no longer binding. It was not held in that suit that the earlier maintenance decree was bad from the very inception or was void ab initio. Even that decree Was not set aside but was only held to be no longer binding in view of the changed circumstances. Obviously in that judgement there is no decision that the wife will not be entitled to maintenance even if the conditions requisite for obtaining maintenance are found to exist in future. Therefore that decree did not disentitle the wife to claim maintenance in future, if the circumstances would warrant such claim in accordance with law. Consequently when the wife has now come before the court claiming maintenance under Section 125 Cr. P. C. the Magistrate inspite of the earlier decision in the civil suit has to examine and ascertain whether at the present moment the wife is in need of maintenance in accordance with law. In examining that aspect of the matter on the basis of the relevant materials on record the learned Additional Sessions Judge. I find has correctly arrived at the decision that the wife is entitled to and is in need of maintenance now.