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Sukumar Dhibar Vs. Smt. Anjali Dasi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1983CriLJ36
AppellantSukumar Dhibar
RespondentSmt. Anjali Dasi
Cases ReferredRanjit Kumar v. Swaha Rani
Excerpt:
- .....the learned magistrate has found from the evidence that as no child was born to the opposite party wife after the death of her first child her husband and mother-in-law ill-treated her, that the husband never went to the wife's parent's house to bring her to his house nor did he provide for her maintenance since bhadra 1379 b. s. and that although the husband's second marriage with lakhmi dassi has not been proved, his relationship with the said woman said to be the cook of his household is rather mysterious. the learned magistrate has found that in spite of the decree for divorce obtained by the husband during the pendency of the maintenance proceeding the divorcee is entitled to get maintenance from her husband as she is unable to maintain herself and the husband who deposited.....
Judgment:
ORDER

Amitabha Dutta, J.

1. This revisional application is directed against an order dated 29-11-1980 passed by the learned Judicial Magistrate, Suri in Misc. Case No. 27 of 1975 granting maintenance allowance at Rs. 75/- per month to the opposite party in a proceeding under Section 125 of the Criminal P. C., 1973.

2. The opposite party applied under Section 125 of the Code before the learned Magistrate alleging that she was married to the petitioner on 16th Magh 1373 B. S. according to Hindu rites and had a son out of the wedlock who died soon after birth, that as she did not give birth to any child thereafter, she was ill-treated by her husband and mother-in-law that ultimately on 1st Bhadra 1379 B. S. she was taken by her husband to her parent's house and left there, that thereafter the husband did not attempt to take her to his house or arrange for her maintenance, and that he has married again one Lakhmi Dassi. It was further alleged that the opposite party had no means to maintain herself and that her husband had sufficient properly and income to pay her maintenance allowance at Rupees 100/- per month.

3. The petitioner husband contested the application alleging that the wife left his house without any lawful excuse and deserted him that he has obtained a decree of divorce on the ground of desertion in Matrimonial Suit No. 27 1976 that Lakhmi Dassi is a cook in his house and not his second wife and that the husband is a manual labourer for catching fish without any landed property.

4. The learned Magistrate has found from the evidence that as no child was born to the opposite party wife after the death of her first child her husband and mother-in-law ill-treated her, that the husband never went to the wife's parent's house to bring her to his house nor did he provide for her maintenance since Bhadra 1379 B. S. and that although the husband's second marriage with Lakhmi Dassi has not been proved, his relationship with the said woman said to be the cook of his household is rather mysterious. The learned Magistrate has found that in spite of the decree for divorce obtained by the husband during the pendency of the maintenance proceeding the divorcee is entitled to get maintenance from her husband as she is unable to maintain herself and the husband who deposited Rs. 2000/- in the matrimonial suit towards the alimony pendente lite has capacity to pay maintenance at Rs. 75/- per month to the wife.

5. In challenging the order of the learned Magistrate it has been submitted on behalf of the petitioner husband that in view of the judgment and decree for divorce passed on 24-1-1979 by the learned Additional District Judge, Brib-hum in Matrimonial Suit No. 27 of 1976 brought by the husband dissolving his marriage with the opposite party wife on the ground of desertion for over two years before the suit the the learned Magistrate was not justified in making the impugned order granting maintenance to the wife. It is argued that the aforesaid judgment of the Matrimonial court is a judgment in rem and binding on all persons as it has been held in AIR 1975 SC 105 : (1975 Cri LJ 52) and that it is not correct to hold that the finding as regards the ground for granting divorce is not binding on the criminal court. Reference has been made to the decision reported in AIR 1957 All 658 : (1957 Cri LJ 1052) that the principle of res judicata applies as proceedings under Section 488 of the old Code are of quasi civil nature. The learned Advocate for the opposite party has sought to repel these contentions.

6. After considering submissions made on behalf of the parties and the materials on record I find that there is no sufficient around to interfere with the impugned order of the learned Magistrate. Section 41 of the Evidence Act provides, inter alia, that the judgment and decree of the matrimonial court is conclusive proof that any legal character which it takes away from any person ceased at the time from which such judgment or decree declared that -it had ceased or should cease. Judgment in rem means an adjudication pronounced upon the status of a person or thing by a competent court to the world generally. But it is not conclusive evidence of the facts constituting the reasons for the decision, in another proceeding in a court of coordinate jurisdiction as has been held by a learned single Judge of this Court in the case of Ranjit Kumar v. Swaha Rani, (1979) 2 Cal LJ 202 : 1979 Cri LJ 1301 in which the question arose in connection with two applications for cancellation of the maintenance order under Sections 125(5) and 127(2) of the Code respectively. In the Allahabad decision reported in : AIR1957All658 relied on by the learned advocate for the petitioner, the learned single Judge held that the principle of res judicata applies as proceedings under Section 488 of the old Code are of quasi civil nature, in a different context and in deciding that for any cause that existed at the time when the maintenance order was passed it is not open to the husband to have the same cause considered again in a proceeding for enforcement of the maintenance order under Sub-section (3) of the said section. The point at issue in the present case did not arise in the reported case. In the present case the learned Magistrate has found from the evidence that on account of the wife's failure to give birth to any child after the death of her first child she was ill-treated by her husband and mother-in-law and that although the wife has been living in her parent's house since Bhadra 1379 B. S. (September 1972) the husband never came to take her to his house nor arranged for her maintenance. The husband in his evidence has declined to take the wife to his house after the decree for divorce dissolving the marriage. Under Section 125 of the Code a divorcee or a woman who has been divorced by her husband is entitled to get maintenance allowance from her ex-husband till her remarriage, if she leads a chaste life. Under Section 25 of the Hindu Marriage Act, 1955 also, the matrimonial court has discretion to grant permanent alimony to the wife after the decree for divorce although such decree has been passed on the ground of adultery or cruelty or desertion, if she remains single and as long as she shall live chaste. In my view, in the instant case the opposite party (who) was divorcee is entitled to get maintenance allowance as the petitioner husband himself in his evidence before the court has refused to take her to his house after the decree for divorce. It cannot be said that the opposite party after divorce has refused to live with the petitioner without sufficient cause. I hold that there is no bar under Section 125(4) of the Code to the grant of maintenance allowance to the opposite party as a divorcee since December 1980 that is to say from a date subsequent to the date of the decree for divorce passed by the matrimonial court, As regards quantum, the learned Magistrate has rightly assessed the same on the materials available to him, and there is no reason to interfere with his assessment.

7. In the result, the revisional application fails. It is disallowed and the Rule is discharged.


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