District :
Bankura.
In the Court of the Learned 2nd
Judicial Magistrate, at Bishnupur, Bankura.
Misc.
Case no. of 2013.
(
arising out of Misc. Case no.
of 2013 ).
In
the matter of :
Sri
Goutam Kumar Ghosh ______Petitioner.
-
Versus –
Smt. Mahua Ghosh ________Opposite
Party.
Written Arguments
1. That the
Opposite Party Smt. Mahua Ghosh, filed one Misc. Case being no. of 2012, under Section 125 of the
Criminal Procedure Code’ 1973, against the petitioner Sri Goutam Kumar Ghosh,
for maintenance and whereas She also filed one application for interim
maintenance, which has been heard by the Learned Court and accordingly an order
of interim maintenance has been passed on 16-04-2012, by this Learned Court.
2. That it is
pertinent to state that one Matrimonial Suit being no. Mat Suit no. 59 of 2011,
has been initiated by the Petitioner against the Opposite Party Smt. Mahua
Ghosh, before the Learned District Judge, at Alipore, South 24 Parganas, which
has been subsequently transferred to the Learned 14th Court of the
Additional District Judge, at Alipore, South 24 Parganas, and whereas the
Opposite Party appeared through her Learned Advocate, though She did not
contest the said Matrimonial Suit and ultimately, the Learned Additional
District Judge, Alipore, South 24 Parganas, was pleased to pass necessary
order, with a decree that the marriage between the parties of the suit
dissolved at the cost as enumerated therein in the decree of dissolution of
marriage dated 22-01-2003, between the parties.
3. That the
said decree of dissolution of marriage between the parties has been granted by
the Learned Court on the ground of cruelty as “ the respondent started torture
mentally and physically on different pretext” “ It also appears from the record
that there is no chance of lodging conjugal life due to behavior of the
respondent”.
4. That the
Opposite Party Smt. Mahua Ghosh, is not the wife of your petitioner, in
accordance with the Order dated 11-05-2012, passed by the Learned Court of 14th
Additional District Judge, at Alipore, South 24 Parganas, in Mat Suit no. 59 of
2011.
5. That Since
the Petitioner is a victim of the purported activities of the Opposite Party,
which termed as a torture as to mentally and physically, inflicted by the
opposite party, herein, and more particularly, such act of cruelty has been
established and proved by the petitioner, in said Mat Suit no. 59 of 2011, and
whereas such an act of the opposite party obstruct and resist the conjugation
of marriage life at her sweet will of the opposite party, and thus while the
act of the opposite party has well established in a Matrimonial Suit and
adjudicated and decided and ultimately delivered with established reasons by
the Learned Court of the Additional district Judge, Alipore, South 24 Parganas,
in that event nothing has ever been left to adjudicate and or to decide further
in a proceedings of summery nature, before the Learned Magistrate, at
Bishnupur, Bankura.
6. That the
fundamental questions in a present proceedings under Section 125 of the
Criminal Procedure Code’ 1973, as to “refused and neglect” by the Petitioner
does not arise at all and not only prima-facies but on established propositions
as delivered in the said Matrimonial Suit, that the petitioner is a victim of
torture mentally and physically inflicted by the opposite party herein, and
there is no chance of conjugation of married life at the instances of the
opposite party, and in such an established event, how the petitioner will be
make liable to maintain the opposite party.
7. That in the
fact and in the Law, the Opposite Party is not entitled to get any money toward
maintenance of her in any manner, whatsoever, from the petitioner herein.
8. That no
morality of Law and fact can be drawn up by any presumption or assumption, that
the Opposite Party is entitled to get maintenance from your petitioner, in any
manner whatsoever, while it has been established that She inflicted torture
mentally and physically on your petitioner and there is no chance of
conjugation of married life at the instance of the opposite party, thus the
Opposite Party is not entitled to get any maintenance for her from the
Petitioner.
9. That in view
of such facts, your Petitioner is seeking that the Learned Court, on considering
the factual aspects as well as the Legal aspects, set aside the Order dater
dated 16-04-2012, passed by this Learned Court in Misc. Case no. of 2012, and cancelled the order
of interim maintenance, at once.
10. That
proceeding in Civil Court are substantial - Granting maintenance to the wife
can not be sustained – The Proceedings in Civil Court are substantial whereas
the proceedings under Section 125 of the Code of Criminal Procedure are of
summary nature. Once the Civil Court of a Competent jurisdiction comes to the
conclusion that wife is not entitled to maintenance from her husband the
criminal court can not sit in appeal over the said decision. Even section 127 (
2 ) of the Cr. P. C. contemplates cancellation of an order passed under section
125 after the decision of a Civil Court. Whereas a wife filed a civil suit for
declaration that she was entitled to reside separately from her husband and for
maintenance from him under the Hindu Adoption and Maintenance Act, 1956, and
the same came to be dismissed on merits and the order became final as no appeal was filed there against
the subsequent order passed by a Magistrate under Section 125 of the Code of
Criminal Procedure granting maintenance to the wife ca not be sustained. Murlidhar versus pratibha, 1985 ( 87 ) Bom
LR 561 ( Bom ).
11. That
Civil Court – Jurisdiction of – The legislative intent is manifest in the
language used in sub section (2) that the order needs to be cancelled or varied
by the Magistrate, if the Magistrate feels that the order of maintenance passed
by him should be cancelled or varied in view of the decision of the competent
civil court. Without such cancellation and variation, the order of maintenance
would not be rendered ineffective. The civil court decision must be brought to
the knowledge of the Magistrate whether rendered before or after the order of
the Magistrate shall then consider the question of cancellation or variation of
the maintenance order. However, it may be stated that a clear and categorical
finding , if given by the competent
civil court, can not be overlooked or ignored or disregarded by the Criminal
Court. Harikishan Versus Shanti Devi, 1989 Cri L J 439 at 443 / ( 1989 ) 2
Crimes 599.
12. That
if wife is not able to prove cruelty, She is not entitled to get maintenance. IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD, CRIMINAL REVISION APPLICATION NO. 226 of 2002 { Sanjay
Sudhakar Bhosale – versus – Khristina } decided on 08-04-2008.
13. That the other judicial reference upon which, your petitioner relied upon :
a) Saraswati Devi – Versus – State of U.P. and others, on 23rd May’ 1995. II ( 1995 ) DMC 674.
b) K. Venkataratnam – Versus – Kakinda Kamala, on 21st August’ 1959. AIR 1960 Ori 157.
c) Ramji Malviya – Versus – Smt. Munni Devi Malviya on 20th March 1959. AIR 1959 All 767, 1959 Cri L J 386.
14. That the provisions of Section 127 (2) state as 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.
15. That in the facts and circumstances, Smt. Mahua Ghosh, is not entitled to get any maintenance, and the order of maintenance should be cancelled.
Through ________
Advocate for the Petitioner.
District :
Bankura.
In the Court of the Learned 2nd
Judicial Magistrate, at Bishnupur, Bankura.
Misc.
Case no. of 2013.
(
arising out of Misc. Case no.
of 2013 ).
In
the matter of :
Sri
Goutam Kumar Ghosh ______Petitioner.
-
Versus –
Smt. Mahua Ghosh ________Opposite
Party.
FIRISHTI
( Enclosure )
a) Murlidhar versus pratibha, 1985 ( 87 ) Bom
LR 561 ( Bom ).
b) Harikishan Versus Shanti Devi, 1989 Cri L J
439 at 443 / ( 1989 ) 2 Crimes 599.
c) IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT
d)
Saraswati Devi – Versus – State of
e) K. Venkataratnam – Versus – Kakinda Kamala, on 21st August’ 1959. AIR 1960 Ori 157.
f) Ramji Malviya – Versus – Smt. Munni Devi Malviya on 20th March 1959. AIR 1959 All 767, 1959 Cri L J 386.
Through ________
Advocate for the Petitioner.
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