Judgment:
ORDER
Pradip Kumar Biswas, J.
1. This is an application under Section 397/401 read with Section 482 of the Cr.P.C. praying for setting aside of the order dated September 5, 2000 passed by the learned Judicial Magistrate 2nd Court, Hooghly in connection with case No. being M. C. Case No. 163 of 1998 whereby and whereunder the learned Magistrate was pleased to reject the application filed by the present petitioner praying for dismissal of the application under Section 125 of Cr.P.C. filed by the opposite party No. 2 seeking for an order of maintenance for herself and for her two female Children.
2. The facts leading to the filing of the present application are as follows :
The petitioner was given in marriage with the opposite party No. 2 on 10th September 1989 and during the year 1990, a daughter was born out of their wedlock. Subsequently, due to the difference of opinion between the petitioner and the opposite party No. 2, the opposite party No. 2 started living separately since 1991 and despite attempts being made from the side of the petitioner and his relatives, no reconciliation between the petitioner and the opposite party No. 2 could be made. Thereafter, on October 10, 1996 the petitioner and the opposite party No. 2 jointly filed an application under Section 13B of the Hindu Marriage Act, 1955 praying for a mutual divorce of the marriage between them wherein it was contended that due to want of adjustment between them, they could not live together and they were residing separately for the last 5 years and that they have a female child of 6 years of age and the said child is residing with the opposite party No. 2.
3. It was further alleged in the aforesaid application that the petitioner and the opposite party No. 2 have amicably settled the amount of maintenance for the opposite party No. 2 and for her aforesaid child at Rs. 20,000/- only.
4. In terms of the application dated May 2, 1997 the present petitioner paid Rs. 20,000/- to the opposite party No. 2 and the opposite party No. 2 issued a receipt accepting the aforesaid amount towards permanent maintenance for herself and for the female child. Subsequently, on May 2, 1997 the learned District Judge, Midnapore allowed the application under Section 13B of the Hindu Marriage Act, 1955 and thereby dissolved the marriage tie between the opposite party No. 2 and the present petitioner. On November 10, 1998 the opposite party No. 2 initiated M. C case No 163 of 1998 by filing an application under Section 125 of Cr.P.C. before the Court of the learned Judicial Magistrate Chinsurah, Hooghly praying inter alia for the maintenance at the rate of Rs. 4500/- per month only. It was contended therein that in the year 1989, marriage was solemnized between the opposite party No. 2 and the petitioner and out of their wedlock, two daughters were born and that although the opposite party No. 2 used to do all household work in the family of the present petitioner but because of the birth of two female children, petitioner and other members of his family used to misbehave and inflict torture upon the opposite party No. 2 and ultimately on November 16, 1997 the opposite party No. 2 was thrown out from her matrimonial house and since then the opposite party No. 2 has been residing at her parent's house along with two daughters. The opposite party No. 2 has no independent income of her own whereas present petitioner being a class-IV staff in a bank has sufficient income of his own and accordingly prayer for maintenance, as aforesaid was made on her behalf and on behalf of her two female children.
5. The petitioner after receiving the summons dated January 6, 2000 filed his show cause denying inter alia all the material averments made in the application under Section 125 of Cr.P.C. The petitioner also contended further that due to difference of opinion between them they started residing separately since 1991 and on October 10, 1996 both of them jointly filed an application under Section 13B of the Hindu Marriage Act praying for mutual divorce and that the petitioner paid Rs. 20,000/- only to the opposite party No. 2 towards permanent maintenance of the petitioner and her minor daughter and that the said application has been allowed whereby and whereunder the marriage tie between the parties was put to an end. It was further contended by him that by suppressing all those facts the opposite party No. 2 has filed such application only to mislead the Court.
6. The present petitioner filed an application on January 6, 2000 taking the aforesaid ground of divorce and payment of maintenance etc. and since those were suppressed, the prayer was made before the ld. Magistrate for dismissing the application under Section 125 of the Cr.P.C. filed at the instance of the opposite party No. 2.
7. Eventually by an order September 5, 2000 Judicial Magistrate, 2nd Court, Hooghly rejected the said application dated 6th January 2000.
8. Being aggrieved by and dissatisfied with the aforesaid order the petitioner has come up with the revisional application praying for the reliefs as mentioned above alleging that the learned Magistrate has erred both in law as well as in facts in the case in rejecting the application filed by the present petitioner, and that the learned Magistrate has rejected the aforesaid application on a misconception of law and without taking into consideration of the fact that Rs. 20,000/-was accepted by the opposite party No. 2 as her permanent maintenance and for the maintenance of her minor daughter.
9. This prayer has been opposed by the learned advocates appearing for the opposite party No. 2.
10. I have heard the learned advocates for the parties. The learned advocate appearing on behalf of the petitioner has placed his reliance on a decision reported in 1990 CCLR (Cal) 295 : (1990 pri LJ 2415) in the case of (Amarendra Nath Bagui v. Smt. Gouri Rani Bagui).
In the aforesaid decision, it was held by His Lordship that 'Admittedly the parties are living separately by mutual consent. The O.P. No. 1 is not, therefore, entitled to maintenance under Section 125 of the Criminal Procedure Code. She may be entitled to maintenance under the Hindu Marriage Act or in an action for enforcement of the alleged agreement for maintenance but Sub-section (4) of Section 125 which governs the whole of Section 125 including Sub-section (1) is a clear bar to her claim for maintenance'.
It was further held in the aforesaid decision that in this case separate living proceeded from the common desire of the husband and the wife to live separately and was in fact an outcome of a free agreement between the parties. The parties are living separately on mutual consent and the O.P. No. 1 is not entitled to maintenance under Section 125 of Cr.P.C.
11. Placing their reliance on the ratio of the aforesaid decision, it has been contended on behalf of the petitioner that since the marriage tie between the parties has been dissolved under Section 13B of the Hindu Marriage Act, 1955 and at that time the O.P. No. 2 having accepted Rs. 20,000/- as permanent maintenance for herself and for her minor daughter, no further claim could be made or led by her claiming further maintenance from her erstwhile husband and in the instant application under Section 125, Cr.P.C. there being suppression of material facts, the Court should not have allowed O.P. No. 2 to proceed with her claim of maintenance and the ld, Magistrate ignoring the aforesaid factum has passed the aforesaid impugned order quite illegally and as such it should be set aside and the concerned application Section 125 of Cr.P.C. should be dismissed in limine.
12. Learned cpunsel appearing for the petitioner has drawn my attention to the Annexure, specially Annexure-'A', which is a petition under Section 13B under the Hindu Marriage Act and Annexure 'B', a receipt showing payment of Rs. 20,000/- by the petitioner in favour of the Opposite Party No. 2 and also the Application under Section 125 being Annexure-'D' and his impugned application, Annexure 'F'.
13. I have looked into the aforesaid materials with meticulous care.
14. Although it has now transpired that Section 13B application was presented by the parties whereby marriage tie between the parties has been dissolved, yet, the claim of the O.P. No. 2 for maintenance qua wife under the definition contained in the explanation (b) to Section 125 of the Code continues unless parties make adjustments and come to terms regarding the quantum on the right of maintenance and mere divorce does not end right to maintenance.
15. I am, however, fortified to hold so in view of the authority of the decision of the Apex Court as reported in : 1979CriLJ3 in the case of Captain Ramesh Chander Kausrhal v. Mrs. Veena Kaushal and on the authority of the aforesaid decision, I am rather constrained to hold that the ratio of the decision reported in 1990 C Cr LR (Cal) 295 : (1990 Cri LJ 2415) (supra) has no manner of application whatsoever the facts and circumstances appearing in the concerned case, as in the instant case, on the available facts and circumstances, as disclosed herein, it may not be necessary perhaps to deal with the situation, whether or not the O.P. No. 2 is living separately by mutual consent being one of the three contingencies provided in Sub-section (4) of Section 125 of Cr.P.C. in deciding the claim of maintenance in this proceeding under Section 125 of Cr.P.C.
16. Another contention which has been raised on behalf of the petitioner to defeat the claim of maintenance of the O.P. No. 2 is the alleged payment which has been made by the petitioner to the O.P. No. 2 as permanent maintenance.
17. Obviously, the aforesaid question will be a disputed question of facts to be decided by the Court in course bf hearing of the application itself, but to find out the ultimate legal implications involved in the aforesaid question, I may profitably use the observations of the Apex Court reported in : 1979CriLJ151 in the case of Bai Tahira v. Ali Hussain Fissalli Chothia, wherein the Apex Court has resolved the issue with the following observation.
'No settlement of claims which does not have the special statutory right of the divorce under Section 125 can operate to negate that claim'.
'The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation if the Court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under Section 125 -- not mathematically but fairly -- then Section 127(3)(b) subserves the goal and relieves the obligor, not pro tanto but wholly. The purpose of the payment under any customary or personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of Section 127(3)(b) is manifestly to recognize the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential as provision for maintenance to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. The proposition, therefore, is that no husband can claim under Section 127(3)(b) absolution from his obligation under Section, 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance'.
18. On the authority of the aforesaid decision of the Apex Court and taking into consideration the rival contention of the parties, I am of the clear opinion that simply on rasing the plea, the application for maintenance filed by the O.P. No. 2 against the present petitioner cannot be thrown out and the learned Magistrate is to decide the question of aforesaid fact of payment of maintenance and to see whether there is a rational relation between the sum so allegedly paid and its potential as provision for maintenance and then to decide whether or not the petitioner husband can claim absolution from his obligation under Section 125 of Cr.P.C. towards a divorced wife.
19. Now, in view of what I have stated above and upon perusal of the entire materials available on record and having considered the rival contention of the parties, I hold with certainty that no illegality whatsoever has been committed by the learned Magistrate in passing the order impugned and as such it requires no interference by this Court.
20. In consequence thereof, I reject this revisional application.
21. Let it now be made clear that 1 have not made any observation with regard to the merit of the contentions raised by the parties in connection with this case and the learned trial Judge will be at liberty to come to a finding of its own on the available materials and evidence, to be adduced by the respective parties in the trial itself.
22. The revisional application accordingly fails.
23. Interim order, if there be any, be vacated.
24. Urgent Xerox certified copy of this Judgment, if applied for, be made available to the parties with utmost expedition.