SUJATA DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE scope and ambit of the revisional jurisdiction under Section 397 read with Section 401 of the Cr. P. C. has once again been argued by the petitioner-wife who has been denied maintenance by the learned Additional Sessions Judge, Diamond Harbour in Criminal Motion No. 44 of 2006 through the order dated 18th of May, 2006 reversing thereby the grant of maintenance made by the learned Additional Chief Judicial Magistrate, Diamond Harbour upon hearing the application being case no. M-83 of 2005 corresponding to T. R. No. 312 of 2005 under Section 125 of the Cr. P. C. The petitioner argued through her learned Advocate that the order of the learned Additional Sessions Judge impugned would reveal that the learned Judge was approaching in a manner as if he was trying an offence so as to find out if an offence has been adequately proved or not; and in fact the order passed in revision would reflect that the learned Judge did forget that he was not exercising appellate jurisdiction and the scope of interference with the order of the learned trial court was limited to find out if the order impugned before the learned Judge would appear to be perverse and was contrary to the evidence on record. When this was not so, the learned Judge in the court of revision could not be said to have been justified in refusing maintenance to a poor and downtrodden girl who was neglected and refused to be maintained by her husband leading to which she moved an application under Section 125 Cr. P. C. before the learned Magistrate.

(2.) MR. Debashis Roy, learned advocate appearing for the opposite party submitted that the Magisterial order was wrong and perverse inasmuch as evidence if analyzed properly would tend to show that the wife came out of the matrimonial home out of her own accord and disassociated herself from the society of her husband which would justifiably entitle the husband to refuse to maintain the wife in view of sub-section (4) of Section 125 Cr. P. C. The order of the Additional Sessions Judge has been passed upon examination of the evidence on record and must not be disturbed.

(3.) IN the maintenance application under Section 125 Cr. P. C. the petitioner who was married to the opposite party admittedly on 11-06-2004 alleged that sometime after her marriage it came to be revealed that her husband was a man of loose virtue, a drunkard, and would return home at late night and would assault her. Further, being dissatisfied with the quality of the ornaments and other articles which were presented in the marriage her husband demanded a sum of Rs. 20,000/- from her father and on the pretext of demand of more money she was subjected to assault and ill treatment. On 18th of October, 2004 she was severely assaulted and driven out. She lodged a diary being GDE No. 364 with the local police station at Diamond Harbour on 6th of January, 2005. After being driven out she remained neglected and uncared for. In the written objection there was total denial of the petitioner's narrative in the application for maintenance. It was alleged that on 18th of October, 2005 the petitioner left for father's home on occasion of Durga Puja. The opposite party also had been to the house of his father-in-law and returned home but the wife refused to come on the ground that she would stay in her father's house for some more days. When the opposite party again went to his father-in-law's house after Laxmi Puja to bring his wife back she refused to come back. He was humiliated and threatened with dire consequences. He instituted a suit, being MAT Suit No. 204 of 2005 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which is pending. The petitioner said in her evidence that after marriage she noticed that her husband was a habitual drunkard and would torture her under the influence of liquor. Pressure was mounted upon her to bring Rs. 20,000/- from her father's house which could not be fulfilled. She was denied sufficient food. Her husband has affairs with number of women and on 18th of October , 2004 she was assaulted and driven out. In her cross-examination she stated that she was not willing to go to her husband if he would file an application before the court. A close scrutiny of cross-examination of the petitioner would reveal that such cross-examination consisted of parade of suggestions which she denied. She, of course failed to say in her cross-examination the date of her being driven out. She denied that she voluntarily came to her father's house on the occasion of Durga Puja or that she refused to come back to her matrimonial home.