MD BASIR Vs. NOOR JAHAN BEGUM

JUDGEMENT

(1.) THESE two Rules are taken up together for disposal as these are Interconnected and arise out of the same order dated the 4th December, 1968 passed by sri S. R. Bhowmick, Presidency Magistrate, 7th Court, Calcutta, under section 488 of the Code of Criminal Procedure in case No. M/1023/67. The first Rule, being Criminal Revision case No. 1376 of 1968, is at the instance of the 2nd. party husband, Md. Basir, for setting aside the order of maintenance passed by the learned Presidency magistrate of ths sum of Rs. 350/- per month payable to the 1st party wife, noor Jahan Begum to take effect from the date of the order. The other Rule, being Criminal Revision Case No. 231 of 1969, is at the instance of the wife, noor Jahan Begum, for setting aside the order passed by the learned Presidency Magistrate, rejecting the petitioner's prayer for allowing maintenance also to her five daughters, living with her and for enhancing the quantum of maintenance.

(2.) THE back-drop of the case is set in a respectable Mohammedan family of Calcutta, the husband, Md. Basir, being a man of position and affluence while the wife, Noor Jahan Begum, is also well-connected. Unfortunately for the couple the ship of their marriage, instead of riding the high seas got entangled into shallows of doubts and bitterness. There were allegations and counter-allegations by one against the other, leading on to various litigations, culminating in the present proceedings under section 488 of the Code of Criminal Procedure. Bereft of all varbiage, the case of the first party is that there was continuous neglect, refusal to maintain, and even cruelty on the part of the second-party and that to add to her discomfiture, new flames appeared in her husband's life and she had to leave the house in 1965 and in early 1966 and was ultimately driven out in July, 1966. Since then she was living separately from her husband with her five minor daughters on the charities of friends and neighbours and she is not living at 41, Zackaria Street, calcutta, at the residence of her husband's brother, Samsul Haque. Left with no other alternative,she filed the present application for maintenance under section 488 of the Code of Criminal Procedure in the court of the learned Chief Presidency Magistrate, calcutta, praying for a maintenance of rs. . 800/- for her and Rs. 200/- each for the five minor daughters, totalling rs. 1,8000/- per month. The second-party showed cause and his case inter alia is that the boot is on the other leg; that the wife is really the guilty party; that it is out of her own free-will that she had left the house during his absence; and that the allegations levelled against him are all untrue. 7 witnesses were examined on behalf of the first-party and 6 on behalf of the second-party, besides several "documents being proved by the parties and as a result of the enquiry the learned Presidency Magistrate by his order dated the 4th December, 1968, passed the order of maintenance mentioned above. The said order has been impugned and the two Rules were issued.

(3.) MR. Nalin Chandra Banerjee, advocate (with Mr. Jahar Lal Roy, advocate) appearing on behalf of the second-party petitioner in the first Rule, has contended that the order of maintenance passed by the learned presidency Magistrate is not a proper order in law because of the absence of the essential ingredients enjoined under section 488 (1) of the Code of Criminal procedure. Mr. Bejoy Kumar Bhose, advocate (with Mr. Anil Bandhu Roy, advocate) appearing on behalf of the first-party, opposite party, submitted that the evidence on record both oral and documentary, clearly establishes gross neglect and refusal to maintain the wife and the children by the husband and exhibits 1, 1/1,2,2/1, 3 and 3/1/1, the written commitments by the second-party nusband, bear eloquent testimony to that.