MILLON MUKHERJEE Vs. ARCHANA MUKHERJEE

JUDGEMENT

(1.) THE petitioner is the husband and the opp.party is the wife. The wife -opp.party filed Misc.Case No.10 of 1994 under Section 125, Cr.P.C. before the learned Judicial Magistrate First Class, Jaleswar asking for a monthly maintenance of Rs.500/ - from the petitioner -husband basically on the plea of neglect and ill -treatment towards her by the petitioner -husband and his family members. It was pleaded by the opposite party -wife that after being driven away by the petitioner -husband, she has taken shelter in the house of her parents and that she has no source of earning to maintain herself and so the petitioner -husband, whose income is more than Rs.3,000/ - per month, should pay her a monthly maintenance of Rs.500/ -.

(2.) THE petitioner -husband resisted the claim of maintenance on the plea that never ill -treated or neglected to maintain the opposite party -wife, but without any rhyme or reason the opposite party -wife has deserted him and inspite of all efforts she is not coming back. The petitioner husband also took the plea that the opp -party -wife is leading an adulterous life with one Ashok Pathak and for that reason she has forfeited her right of maintenance.

(3.) WHENEVER , an order of maintenance is challenged either before the Sessions Judge or the High Court in a revision petition or a petition under Section 482, Cr.P.C., such Court shall not consider the matter as it if were a Court of appeal, and normally refrain from interfering with the finding of fact and shall allow the aggrieved party to file a suit. Only when the Courts of fact have not given any definite finding on the issue of marriage or on the issue of neglect and ill -treatment or when the maintenance amount awarded is grossly in adequate then interference can be made by the High Court under Section 482, Cr.P.C. (See Cr.L.J. 1935, Vol -35, Page -1044, M.B. Ignatious v. Alagamma). So, it is now not open for this Court to re -assess the entire evidence on record and to give fresh finding on the issues of fact. The only aspect which this Court is empowered to examine is whether there is lack of any definite finding on the issues or whether there is any perversity in the approach of the Courts below.