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Ranjit Kumar Pandey Vs. Sm. Swaha Rani Pandey - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1979CriLJ1301
AppellantRanjit Kumar Pandey
RespondentSm. Swaha Rani Pandey
Excerpt:
- .....the code) directing the petitioner to pay a sum of rs. 40 per month towards the maintenance of the wife opposite party and a further sum of rs. 80 per month towards the maintenance of their daughter, the petitioner filed a re-visional application and by his order dated january 5, 1978 the additional sessions judge, 12th court, alipore rejected the said application and upheld the order of the learned magistrate. the petitioner thereafter filed an application for divorce under section 13 of the hindu marriage act and the same was registered as matrimonial suit no. 825 of 1977. the suit was transferred to the third court of the additional district judge, alipore and was renumbered as matrimonial suit no. 19 of 1978. the suit was decreed ex parte on february 1, 1978 and the learned judge.....
Judgment:
ORDER

Monoj Kumar Mukherjee, J.

1. Against an order dated September 9, 1977 passed by the Sub-Divisional Judicial Magistrate, Basirhat in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) directing the petitioner to pay a sum of Rs. 40 per month towards the maintenance of the wife opposite party and a further sum of Rs. 80 per month towards the maintenance of their daughter, the petitioner filed a re-visional application and by his order dated January 5, 1978 the Additional Sessions Judge, 12th Court, Alipore rejected the said application and upheld the order of the learned Magistrate. The petitioner thereafter filed an application for divorce under Section 13 of the Hindu Marriage Act and the same was registered as Matrimonial Suit No. 825 of 1977. The suit was transferred to the Third Court of the Additional District Judge, Alipore and was renumbered as Matrimonial Suit No. 19 of 1978. The suit was decreed ex parte on February 1, 1978 and the learned Judge declared that the marriage between the parties stood dissolved on ground of desertion of the petitioner-husband by the wife-opposite party. Thereafter the petitioner filed two applications in the Court of the learned Sub- Divisional Judicial Magistrate for cancellation of the order; one under Section 127(2) and the other under Section 125(4) and (5) of the Code on the grounds that the wife-opposite party was leading a life of adultery from the very inception of her marriage with him and that she deserted him since 1970, as would be evident from the ex parte decree passed in the divorce suit. After hearing the parties the learned Magistrate rejected the applications by his order dated April 11, 1979. Aggrieved by the said order the petitioner moved this Court and obtained the present Rule.

2. Mr. Prasun Chandra Ghosh, the learned Advocate appearing in support of the Rule, in his usual fairness submitted that he was unable to support the ground of adultery for cancellation of the order of maintenance. He submitted that in view of the judgment and decree passed in the divorce suit, the order of maintenance is liable to be cancelled under Section 127(2) of the Code. According to Mr. Ghosh, the decision in the divorce suit clearly proved that the wife deserted her husband since 1970 and in view of the said decision of a competent Civil Court, the order of maintenance is liable to be cancelled under Section 127(2) of the Code.

3. For the purpose of properly appreciating the contention raised by Mr. Ghosh it will be necessary to advert to the provision of Sub-section (2) of Section 127 of the Code which reads as follows:

Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

4. There is no manner of doubt therefore that in consequence of any decision of a competent Civil Court an order under Section 125 of the Code is liable to be cancelled if the said decision has a direct bearing on or overrides the order of maintenance. But the decision of the Civil Court in the instant case that the opposite party ceased to be the wife of the petitioner, does not in any way affect the right of the wife to receive maintenance in view of the extended meaning of 'wife' under the Code which includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. It is not the contention of the petitioner that the opposite party has remarried and consequently, notwithstanding the decree of divorce, the opposite party is entitled to get maintenance in the present case.

5. Mr. Ghosh however contended that the decision in the divorce suit includes the fact that the divorce was granted on the ground of desertion by the wife and as such the order is liable to be cancelled. In support of his submission, Mr. Ghosh referred to the principles of interpretation of statutes. I am not however impressed by the contention of Mr. Ghosh.

6. In the instant case it is not the question of interpretation of statute that falls for consideration but only the meaning of the word decision' as appearing in Section 127(2). In my considered view the word 'decision' means the determination of a question or controversy and not the reasons or grounds which weigh with the Court in arriving at such decision. The question or controversy that arose in the divorce suit was whether the marriage between the petitioner and the opposite party should stand dissolved and the decision was in favour of the petitioner. The reason or the ground which persuaded or prompted the learned Judge to come to the said decision was the desertion by the wife. The ground of desertion therefore was not the decision itself but reasons for such decision.

7. The matter can be viewed from another angle. Under Section 41 of the Indian Evidence Act the judgment and decree passed in the said Civil Suit is a conclusive proof of the fact that the opposite party has been divested of her legal status of a wife but not of the reasons for which she has been so divested. Under Section 125(5) of the Code the Magistrate can cancel an order of maintenance on proof that any wife, in whose favour an order has been made under that section, is living in adultery, or that without sufficient reasons she refused to live with her husband or that they were living separately by mutual consent. In the instant case the contention of the petitioner was that the wife deserted since 1970 and this contention was accepted by the Civil Court while passing the decree. If the petitioner intended to have the order of maintenance cancelled on that ground it could be only on proof of the said fact. Needless to say, the fact was required to be proved independently in a proceeding for that purpose as under Section 41 of the Evidence Act the fact of desertion, on which the decree of divorce is rested will not be a conclusive proof.

8. In any view of the matter therefore the contention of the petitioner raised in this application cannot be accepted. The application accordingly fails and the Rule is discharged.


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