HC: Wife give birth within 5 month of marriage: Still maintenance allowed
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
THE HON’BLE MR. JUSTICE KALIDAS MUKHERJEE
C.R.R. NO. 1844 OF 2003
The State of West Bengal & Anr..
For the Petitioner: Madhusudan Mondal
For the O.P. No. 2: Mr. Arindam Sen
Mr. Josojeet Mukherjee
Heard On : 8.4.2010 & 22.6.2010.
Judgment on: 30.6.2010.
Kalidas Mukherjee, J. :
1. This is an application under Article 227 of the Constitution of India assailing the order dated 19.2.2003 passed by learned Additional District & Sessions Judge, Fast Track Court (4th), Raghunathpur, Purulia in Criminal Revision No. 15 of 2001 whereby and whereunder the order dated 21.1.2001 passed by learned Judicial Magistrate in Misc. Case No. 23 of 1993 was affirmed. The learned Magistrate directed the O.P./husband to make payment of maintenance allowance @ Rs.350/- per month to the wife and @ Rs.250/- per month for her son from the date of the order.
2. The case of the petitioner in the application under Section 125 Cr.P.C. is that the applicant is the legally married wife of the O.P. Bhopal Majee and the marriage was solemnized on 20th Ashar, 1393 B.S. After marriage petitioner used to live with the O.P. as husband and wife and gave birth to a son out of their lawful wedlock. The son is aged about six years at the time of filing of the petition under Section 125 Cr.P.C. In the matrimonial home the O.P. began to ill treat with the petitioner and he also assaulted her very often and ultimately drove her out from the matrimonial home. The petitioner/wife came with her minor son to her paternal house. The O.P. did not take any information of the applicant and her minor son. The O.P. has sufficient means to pay maintenance. The O.P. is an able bodied person having 40 bighas of landed property from which he earns 15,000/- per year. Besides the O.P. is a Railway employee working at Garbeta under Southern Railway as class IV staff.
3. The O.P./husband filed written objection before the learned Magistrate contending, inter alia, that there was marriage between the parties on 20th Ashar, 1393 B.S. but the petitioner gave birth to a male child within four months twenty days from the date of marriage. It has been contended by the O.P./husband that the petitioner as well as her father fraudulently concealed and suppressed the fact of pregnancy of the petitioner on the date of marriage. It is alleged by the O.P. that he had no access to and/or even acquaintance with her prior to the marriage 3
and the petitioner became pregnant by someone excepting to the O.P. After the delivery of the child the petitioner’s father came and took back his daughter along with the new born baby. The petitioner and her father promised and assured at that time that they would have no claim on the basis of the marriage between the parties. It has been alleged that because of suppression of material, the marriage was void and the O.P./husband filed a suit bearing T.S. No. 69 of 1993 against the petitioner for a declaration that there was no legal relationship of husband and wife between the parties and the petitioner was not the legally married wife of the O.P. The husband preferred a Misc. Appeal bearing No. 20 of 1993 before the learned District Judge, Purulia. The O.P./husband has contended that the petitioner/wife is not entitled to get any maintenance allowance.
4. The learned Magistrate allowed the petition under Section 125 Cr.P.C. holding that in T.S. No. 69 of 1993 it was held that the petitioner was made pregnant by the O.P./husband and the marriage between the parties was legal, valid and subsisting. The learned Magistrate further held that the finding of the Civil Court was binding upon the Criminal Court and there was no scope for fresh adjudication on that point. The learned Magistrate accordingly held that the marriage between the parties was legal, valid and subsisting and the son born to the womb of the petitioner was by the loins of the O.P. The learned Magistrate further held that the O.P. by challenging the legality and validity of the 4
marriage and in course of challenge raised doubt about the chastity of the petitioner and denied the paternity of the child which was, by itself, sufficient ground for separate living by the petitioner. The learned Magistrate held that the O.P. did not say about his monthly salary though it was within his special knowledge. It was held that the O.P. being an employee in the Railway must have sufficient means to pay maintenance. The learned Magistrate further held that the petitioner having no income to maintain herself and her child, was entitled to get maintenance.
5. The O.P./husband preferred a Criminal Revision bearing No. 15 of 2001 before the learned Additional District Judge who relying on the judgment in T.S. No. 69 of 1993 held that the marriage between the parties was legal, valid, subsisting and the petitioner was made pregnant by the O.P./husband. It is also found from the findings of the learned Judge that the judgment and decree passed in Title Suit was affirmed in Title Appeal No. 39 of 1996. The learned Judge further observed that without going for DNA test, the Court can take into account the accessibility of the parties at the material point of time when the child came to the womb of the wife. The learned Judge dismissed the Criminal Revision and affirmed the order passed by the learned Magistrate.
6. In this application the leaned Counsel for the petitioner/husband made submission in part on 8.4.2010, but, subsequently when the case was 5
taken up for further hearing the learned Counsel did not appear and the argument of the learned Counsel of the O.P./wife was heard.
7. The learned Counsel for the O.P. submits that the marriage between the parties is admitted and there is no ground to interfere with the findings of the learned Additional District Judge. The learned Counsel submits that the wife subsequently filed an application under Section 127 Cr.P.C. for enhancement of the maintenance allowance which was allowed on consent and the maintenance was raised to Rs.1,300/- per month for petitioner and her child. The learned Counsel for the O.P. herein has referred to the decision reported in (2003)6 SCC 1993 [Amina Vs. Hassn Koya] para 4. It has been held by the Apex Court in para 4 as follows:-
” It is very difficult to believe that a woman who is five months’ pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant specially when the pregnancy is five months’ old. Therefore, we cannot accept that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void.”
8. It appears from the impugned order that there was a finding of the Civil Court holding that the marriage between the parties was legal, valid and subsisting and that the petitioner/wife became pregnant by the 6
O.P./husband. In the instant case, the marriage is admitted and the only objection of the O.P./husband is the paternity of the child. In the decision cited above it has been held that the plea of the husband that he was not aware of the pregnancy of the wife, was not accepted. Moreover, from the order dated 14.9.2009 passed in Misc. Case No. 21 of 2008 (Kalabati Majee Vs. Bhupal Majee) in the Court of Judicial Magistrate, 1st Class, Raghunathpur it appears that the maintenance allowance was enhanced under Section 127 Cr.P.C. to Rs.1,300/- per month on consent of the parties. It appears that learned Court below discussed all the points and the learned Judge rightly rejected the Revisional Application. There is no ground to interfere with the findings of the learned Judge.
9. In the result the application under Article 227 of the Constitution of India fails and the same is dismissed.
10. Let a copy of this order be sent down to the learned Court below immediately.
11. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. )