CRIMINAL APPEAL 1027 of 2009 on 29 January 2009

S/L-01 wt 17 03-02-2022 Ct-25 Kole

CRR 1027 of 2009

With

CRAN 1 of 2021

Sri Gouranga Chakraborty

-Vs.-

Smt. Purnima Chakraborty & Anr.

With

CRR 1146 of 2013

Mr. Partha Sarathi Das,

Mr. M. Ritwika,

… for the petitioner.

In Re: CRAN 1 of 2021 in CRR 1027 of 2009

Causes shown being sufficient, the application forrestoration being CRAN 1 of 2021 is allowed.

In Re: CRR No. 1027 of 2009 and CRR No. 1146 of 2013

Curiously, the revisional application being CRR No. 1027 of2009 was filed by the petitioner/husband against an order datedJanuary 29, 2009, even though by the said order, the learnedMagistrate rejected the prayer for maintenance filed by theopposite party no.1/wife under Section 125 of the Code ofCriminal Procedure, 1973.

The wife/opposite party no.1 also being aggrieved by thesaid order dated January 29, 2009, preferred a revisionalapplication before the learned Sessions Judge, North 24Parganas. The said revisional application was allowed by the learned Sessions Judge by his order dated February 5, 2013.Order of the learned Magistrate dated January 29, 2009, was setaside granting maintenance of Rs.1,500/- per month in favour ofthe opposite party no.1/wife.

The said order of the learned Sessions Judge datedFebruary 5, 2013, was again challenged by the petitioner byfiling the revisional application being CRR 1146 of 2013.

Both the applications being CRR 1027 of 2009 and CRR1146 of 2013 are taken up together for hearing.

Since the order of the learned Magistrate dated January29, 2009, as indicated above, had already been set aside by thelearned Sessions Judge on February 5, 2013, the revisionalapplication being CRR 1027 of 2009 has become infructuous.

CRR No. 1146 of 2013 wherein the order of the learnedSessions Judge dated February 5, 2013, has been challenged, is,therefore, taken up for hearing.

It has been submitted by the learned advocate representingthe petitioner that, the learned Sessions Judge while passing theorder dated February 5, 2013, failed to consider that there wasno marriage between the parties.

Learned advocate for the petitioner draws attention to thecross-examination of the opposite party no. 1 where the oppositeparty no.1 expressed her inability to show any photographs insupport of her marriage. It has been submitted by the learnedadvocate for the petitioner that there were no independentwitnesses who deposed on behalf of the opposite party no.1, toprove the marriage.

Before the learned Magistrate, the petitioner urged thatthere was no marriage between the parties and therefore theclaim for maintenance could not be entertained. The learnedMagistrate rejected such contention but declined to grantmaintenance on the ground that the opposite party no.1/wifeherself admitted in evidence that she had an independent sourceof income from stitching clothes.

The learned Sessions Judge in revision held that whileexercising revisional jurisdiction over an order passed by thelearned Magistrate, the Court would be slow to interfere withthe factual findings. The learned Sessions Judge set aside theorder of the learned Magistrate on the ground that withoutascertaining the exact income of the parties or considering theneed of the wife/opposite party no.1 the prayer formaintenance could not have been rejected.

I do not see any reason to interfere with the order of thelearned Sessions Judge.

Apart from opposite party no. 1 herself, two other witnessesadduced evidence to prove that the marriage indeed had takenplace in between the petitioner and the opposite party no.1. Acopy of the application for registration of the marriage was alsoadduced in evidence.

Needless to say that in a proceeding for grantingmaintenance under Section 125 of the Code of CriminalProcedure, 1973, strict proof of marriage is not necessary. Ifthe learned Magistrate is, prima facie, satisfied with the factum of marriage, he will be competent to pass an order ofmaintenance.

The learned revisional Court below granted maintenance ofRs.1,500/- per month to be paid by the petitioner to the oppositeparty no.1 holding that the said amount of maintenance wasminimum for her sustenance.

In my view, the said quantum of maintenance is too paltryto be interfered with by this Court.

The order of maintenance by the revisional Court waspassed way back in the year 2013. The opposite party no.1 willbe at liberty to take out appropriate application before thelearned Magistrate for enhancement/modification of themaintenance amount if she is so advised.

CRR No. 1027 of 2009 and CRR No. 1146 of 2013 are,accordingly, dismissed.

Urgent photostat certified copy of this order be supplied tothe parties, if applied for, as early as possible.

( Kausik Chanda, J. )