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Mahabir Agarwalla Vs. Gita Roy - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1962CriLJ528
AppellantMahabir Agarwalla
RespondentGita Roy
Excerpt:
- .....chief presidency magistrate, calcutta, to show cause why the proceedings under section 488 of the code of criminal procedure pending in the court of a presidency magistrate, calcutta, should not be quashed.2. the facts so far as is necessary for the disposal of this matter are as follows: on the 7th january, 1961, an application was made by the opposite party gita roy under section 488 of the code of criminal procedure in the court of the additional chief presidency magistrate, calcutta, praying for maintenance from her husband, the present petitioner, on the ground that having sufficient means he neglected and refused to maintain her. during the pendency of that case a child was born to her and she filed another application for maintenance of that child.3. on the 2nd may, 1961, and on.....
Judgment:
ORDER

D.N. Das Gupta, J.

1. This Rule was issued upon the Chief Presidency Magistrate, Calcutta, to show cause why the proceedings Under Section 488 of the Code of Criminal Procedure pending in the court of a Presidency Magistrate, Calcutta, should not be quashed.

2. The facts so far as is necessary for the disposal of this matter are as follows: On the 7th January, 1961, an application was made by the opposite party Gita Roy Under Section 488 of the Code of Criminal Procedure in the court of the Additional Chief Presidency Magistrate, Calcutta, praying for maintenance from her husband, the present petitioner, on the ground that having sufficient means he neglected and refused to maintain her. During the pendency of that case a child was born to her and she filed another application for maintenance of that child.

3. On the 2nd May, 1961, and on some dates subsequent thereto a preliminary point was argued before the learned Presidency Magistrate, namely, that the application was not maintainable in view of the provisions of the Hindu Adoptions and Maintenance Act. On the 18th May, 1961 the learned Magitsrate made the following order:.In any case, without expressing any opinion as to the legal validity of the present applications before me it will not be fair to reject them outright at this stage wittreut hearing on merits. In the interests of justice therefore I would call upon both parties to adduce evidence In support of their respective cases. Fix 19-6-61 and 20-6-61 for petitioner's evidence.

On the 19th June, 1961, the case was adjourned to the 13th July, 1961, and 15th July, 1961, for petitioner's evidence. On the 13th July, 1961, the present petitioner prayed for an adjournment through his lawyer. The prayer Was allowed and the case was adjourned to the 20th and 21st July, 1961 for petitioner's evidence. On the 20th July, 1961, again the petitioner applied for an adjournment and this time that prayer was rejected and the learned Magistrate decided to proceed ex parte. The learned Magistrate observed in his order dated the 20th July, 1951, that the present petitioner was adopting 'dilatory tactics' and that that was causing hardship to Gita Roy, the petitioner in that case. On the 20th July, 1961, two witnesses for the petitioner were examined and the matter was adjourned to the 21st July, 1951, for further hearing. On the 21st July, 1951, the present petitioner filed an application before the learned Magistrate for time to move the High Court. One week's time was allowed to the present petitioner for (the purpose. this Court was moved on the 24th July, 1961, and the abovementioned Rule was issued.

4. It is contently by Mr. N. C. Bwrjee anoearing on behalf of the petitioner that the application Under Section 488 of the Code of Criminal Procedure is not maintainable in view of the provisions of Section 4(b) of the Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956). Section 4 of the Act is quoted below:

Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease, to have effect with respect to any matter for which provision is made in this Act:(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

5. The Hindu Adoptions and Maintenance Act, the Hindu' Marriage Act, the Hindu Succession Act and the Hindu Minority and Guardianship Act are some of the enactments towards codification of Hindu Law. There are provisions similar to the provisions of Section 4 of the Hindu Adoptions and Maintenance Act in the three other enactments mentioned above. The object of making such a provision in all the Acts was to give overriding effect to the provisions of the Acts. Section 4 of the Hindu Adoptions and Maintenance Act means that in respect of matters for which provision is made in the Act, it repeals all existing laws, Whether in the shape of enactments or otherwise, which are inconsistent with the Act. The law of maintenance has been codified and the result is that immediately after the 'commencement of the Act the law of maintenance previously applicable' to the Hindus ceases to have effect with respect to all matters provided for in the Act. It follows that the law previously applicable to the Hindus in the matter bf maintenance, statutory or otherwise, will apply in cases governed by the Act in respect of matters expressly saved from the operation of the Act. Prior to the enactment the remedy available to a Hindu wife for recovery of maintenance from the husband who refused or neglected to maintain her was the common law remedy of a suit in the civil court for recovery of maintenance which was ordinarily considered to be dilatory. An alternative but not inconsistent summary remedy was provided by Section 488 of the Code Of Criminal procedure not only to the Hindu' wife but generally to wives irrespective of religion for recovery of maintenance from the husband. The two remedies were, however, not co-extensive. In a suit for maintenance the Civil Court could pass a decree for food, clothing, residence, education and medical attendance and treatment. But the Criminal Court Under Section 488 of the Code of Criminal Procedure could only award maintenance in terms of money. The reason for this is that the Civil Court has but the Criminal Court has not the machinery of inquiring into the value of maintenance in kind. The common law right has now been codified. This will appear from the definition of the term 'maintenance' in the Hindu Adoptions and Maintenance Act. 'Maintenance' includes in all cases provision for food, clothing, residence, education and medical attendance and treatment.

6. There are some obvious differences between the provisions of the Hindu Adoptions and Maintenance Act and the Code of Criminal Procedure, for example, Section 488 of the Code of Criminal Procedure contemplates cash payments and prescribes a maximum limit. Under the Hindu (Adoptions and Maintenance Act maintenance may be granted not only in terms of cash no maximum limit being fixed but also in kind. But it cannot for a moment be maintained that because there are those differences the provisions are inconsistent. In the result it is not possible for me to agree with Mr. Banerjee that Section 4(b) of the Act overrides the provisions of Section 488 of the Code of Criminal Procedure.

7. Next it is contended by Mr. Banerjee that in view of the admission of Gita Roy in her application under Section 488 of the Code of Criminal Procedure that the present (petitioner had a first wife living an application for maintenance by Gita Roy is not maintainable. What Gita Roy states in her application is this.

It has been found out now that the Opp. Party is a marwari having his names as Mahabir Dit Benia alias Mahabir Agarwala and he has been living with his previously married wife and 3 children and that he deliberately suppressed these facts of having a wife and children and made false representations that he was unmarried and Bengalee and thereby he induced your petitioner and her relatives to agree to his proposal of marriage and the marriage et your petitioner with the 0. P. was performed according to Hindu rites.

That really is no admission as stated in ground No. VII in the flevisional application. Gita Roy obviously stated in her application only what she could gather after enquiries. The point whether the present petitioner has a first wife has got to be determined on evidence adduced by the parties. .That would be necessary for decision of the point in issue.

8. Lastly it is contended by Mr. Banerjee that the learned Magistrate was not justified in proceeding ex pane. I would direct that after the records arrive in the court of the learned Magistrate he will give an opportunity to the present petitioner to cross-examine the witnesses who were examined on behalf of the petitioner and the learned Magistrate shall proceed with and dispose of the application Under Section 488 of the Code of Criminal Procedure in accordance 'With law.

9. Subject to the observations made above the Revisional application is rejected and the relevant Rule is discharged.


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