NANI GOPAL KAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS revisional application under Section 401 read with Section 482 of the Cr. P. C. is directed against the impugned order dated 6. 3. 2006 passed by the learned Judicial Magistrate, First Court at Diamond Harbour granting interim maintenance of Rs. 500/- per month to the baby Tapaswini, the daughter of the O. P. No. 2 herein. The case of the petitioner herein, in short, is that he is a very poor man, earning his livelihood as a day labourer in different areas of burdwan, North 24 Parganas, Howrah and Kolkata. Taking advantage of the simplicity of the petitioner, the O. P. No. 2 herein filed a complaint case which was registered as G. R. case No. 1276 of 2004, Pathar Pratima P. S. case No. 57 dated 4. 10. 2004 under Section 376/420/493/120b/504/506,i. P. C. against the petitioner herein, his father, mother, elder brother, his wife i. e, the members of the family of the petitioner with different self-contradictory allegations. There was no marriage of the petitioner herein with the O. P. No. 2 herein and there is no whisper in the said complaint that this petitioner married the victim girl in any form, either by social marriage or under the Special Marriage Act. The petitioner herein is neither the husband of the O. P. No. 2 nor she is the wife of the petitioner. As the case under Section 376, I. P. C. is sub-judice, no maintenance can be granted under Section 125, Cr. P. C. The petitioner filed written objection in the said case for maintenance under Section 125, Cr. P. C. , but, the learned Magistrate ignoring the said written objection passed an order for interim maintenance directing the O. P. to pay @ Rs. 500/- per month for the child. It is the contention of the petitioner that the learned Magistrate was not justified in passing the order for interim maintenance in favour of the child.

(2.) THE learned Counsel appearing on behalf of the petitioner submits that when the case under Section 376, I. P. C. against the petitioner herein is pending, there is no scope to grant interim maintenance in favour of the child. It is contended that in view of the pendency of the case under Section 376, i. P. C. , the learned Magistrate ought not to have passed any order of maintenance in favour of the child.

(3.) FROM the record it appears that a case under Section 376,i. P. C. is pending wherein it has been alleged by the O. P. No. 2 herein that the petitioner used to visit her house and he promised to marry her. On such promise made by the petitioner herein, there was cohabitation and as a result she conceived, but, the petitioner herein refused to marry her. Ultimately, the O. P. No. 2 gave birth to a female baby named Tapaswani. There was village salish, but to no effect. The case was lodged under Section 376/420/493/120b/504/506,i. P. C.