JUDGMENT
N.K. Bhattacharyya, J.
1. The revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973, is taken up alongwith the application for vacating the interim order filed by the wife-Opposite Party No. 1 on 10.3.1995, for hearing.
2. By the instant revisional application, the petitioner had challenged the order and/or judgment dated 3rd March, 1994, passed in Case No. M-135 of 1991, by the learned Judicial Magistrate, 1st class, 5th Court, Barrackpore 24-Parganas (South), whereby the learned Magistrate upon an application under Section 125 of the Code of Criminal Procedure by the wife-Opposite Party No. 1 herein granted maintenance to the wife Opposite Party No. 1 a monthly maintenance of Rs. 400/- to be paid month by month within the 2nd of every month and the petition was allowed and the husband (petitioner herein) was directed to pay the said sum at that rate since the date of filing the application. Against that order the husband (petitioner herein) moved this Court in revision and a Single Bench of this Court by its order dated 17th May, 1994, while directing the petitioner for service of the revisional application upon the Opposite Party No. 1 herein, granted an ad-interim stay of further proceeding on condition that the petitioner shall pay Rs. 200/- per month to the wife Opposite Party No. 1, month by month, and in default, the ad-interim stay order which was granted for nine weeks from that date would stand vacated. From time to time that order was extended. The wife Opposite Party No. 1 in order to vacate or vary the interim order filed an application before this Court on 10th March, 1995. The application for vacating the interim order came up for hearing yesterday before this Court and Mr. Pramod Ranjan Ray, learned Senior Advocate appearing for the petitioner, argued the matter regarding vacating the interim order application but in doing so he also argued on the point of merit of the revisional application. In such circumstances, this Court by its order dated 15th May, 1995 directed that the revisional application and the application for vacating the interim order be heard today.
3. As Mr. Ray yesterday made his submission regarding the main matter and also the vacating matter, Mr. Bimal Ranjan Talukdar, learned Advocate for the petitioner, appearing with Mr. Ray, made his submission today. Both the submissions made by Mr. Ray and Mr. Talukdar are recorded hereunder.
4. Heard the submissions of Mr. Ray and Mr. Talukdar for the petitioner and the Opposite Party No. 1 herself who is appearing in person.
5. The fact silhouetted behind the case is that admittedly the Opposite Party No. 1 is the legally married wife of the petitioner and she lived in her matrimonial home after her marriage which took place on 4th July, 1986. For sometime they lived together happily but thereafter torture started on her both physically and mentally and ultimately she was driven out of her matrimonial home on 9th May, 1989. Since then she was not taken back by the husband petitioner. No attempt was made to take her back and she was not maintained by the husband and neglected by him. She tried to go to her matrimonial home but she was refunded entry. She has no income of her own and she is residing in the house of her father in a very pitiable condition and her husband who is the petitioner herein had a monthly income of Rs. 4500/-. On this allegation she claimed maintenance from her husband at the rate of Rs. 500/- per month from the date of filing the application. Her application under Section 125 of the Code of Criminal Procedure was registered as Case No. M-135 of 1991, T-454 of 1991 before the Court of the learned Judicial Magistrate, 5th Court, Barrackpore, 24-Parganas (South), already mentioned above. Both parties adduced evidence.
6. The O.P. also submitted his show-cause and in consideration of the materials on record, i.e. the evidence as laid by both the parties, the petition under Section 125 Cr.P.C. and the show-cause, the learned Magistrate awarded maintenance to the wife Opposite Party No. 1 herein under Section 125 Cr.P.C. at the rate of Rs. 400/- per month from the date of filing the application.
7. Mr. Ray contended for the husband petitioner that the application of the wife under Section 125 Cr.P.C. is not maintainable as she voluntarily left her matrimonial home without the consent of her husband i.e. the petitioner herein, and as such she is not entitled to any maintenance as envisaged in Sub-section (4) of Section 125 of the Code of Criminal Procedure. His next contention was that the learned Court below without ascertaining the income of the husband has awarded a maintenance of Rs. 400/-which is not permissible under the law. The wife Opposite Party No. 1 in person submitted that she was tortured by her husband and other members of his family during her stay in her matrimonial home and that she was driven out from her matrimonial home with the wearing apparels she had on her person and she was not allowed to take out any other materials which were given to her during her marriage. She has no income of her own to maintain herself; she is living in the family of her father’s house, in a most pitiable condition. Her husband (petitioner herein) never looked after her since she was driven out of her matrimonial home; she was not maintained by her husband and she was neglected. She further submitted that she did not leave her matrimonial home voluntarily but she was driven out and the husband petitioner never attempted to take her back.
8. Having heard the submissions of the learned Advocates for the petitioner, Mr. Ray and Mr. Talukdar and the wife Opposite Party No. 1 in person, I am unable to agree with the submission made on behalf of the petitioner for the following reasons:
9. The Trial Court on appreciation of the evidence as adduced by the parties came to a finding that the husband failed and neglected to maintain the wife and that the husband never tried or attempted to take back the wife. That is a question of fact on which the Court has come to a finding and has taken a view. Sitting in revision in order to substitute that view of the Trial Court on reassessment or reappraisal of the evidence on fact the Revision Court is not competent to do so in view of the Supreme Court decision in the case of Pathumma v. Muhammad, . Regarding the second contention of Mr. Ray that the Trial Court did not ascertain monthly income of the husband petitioner and without doing so, as the maintenance has been awarded to the wife Opposite Party No. 1, the judgment suffers from illegality, impropriety and incorrectness.
10. The wife Opposite Party No. 1 in her deposition as P.W. 1 on oath stated in examination-in-chief that the monthly income of the husband petitioner is Rs. 4500/-. In her cross-examination no suggestion was given that that was not the monthly income of the husband petitioner. The husband who deposed as D.W. 1 never denied that fact in his evidence in examination-in-chief. No such suggestion was given to him in cross examination-in-chief that his monthly income is not Rs. 4500/-. Even in cross examination no such suggestion was given by the petitioner- husband and that is understandable because it is the petitioner’s case meaning the wife’s case and/or allegation that the income of the husband is Rs. 4500/-per month. Though in the show-cause the husband had denied that his monthly income is not Rs. 4,500/- but that plea has not been taken in evidence. So, the principle of non traverse shall apply in this case and it cannot be said that the learned Magistrate without any evidence and without ascertaining the monthly income of the husband petitioner awarded the maintenance.
11. I must record that the conduct of the husband petitioner is not at all commendable. Always the claim of the wife Opposite Party No. 1 was tried to be throttled before this Court in myriad devices. Sometimes the learned Advocate made himself absent when the matter was called on. At one point of time it was submitted that the time was prayed for with the consent of the parties and thereafter the wife Opposite Party No. 1 was sitting inside the Court Room made a complaint before this Court that she did not give any consent and she had been tricked. Be that as it may, even today when she tried to make her submission through a close relative of her because of her deficiency in English, objection was taken. That was not permissible under the law and in such circumstances I had permitted the wife Opposite Party No. 1 to make her submission in Bengali. The claim and/or grievance of the wife opposite party cannot be refused or denied only on the ground that the lady is the wife of the petitioner herein, who has appeared before this Court, and due to her deficiency in English she cannot address the Court and has taken the aid of a close relative of hers to make her submission on her behalf in English. This sort of attitude is neither commendable nor appreciable. This is a vexatious proceeding.
12. As I do not find any merit in this revisional application, I dismiss the revisional application. As I find that this is a vexatious proceeding which should not be allowed to go on, I do hereby award cost of 300 (three hundred only) P.M. to be paid by the husband petitioner to the wife opposite party.
All ad-interim orders stand vacated.
This order disposes of the application for vacating the interim order.
Let the certified copies of this judgment, if applied for, be supplied to the parties as early as possible.