"His Intention Is To Harass Wife": Calcutta High Court Dismisses Husband's Plea To Transfer Maintenance Case Filed By Wife

While doing so, the bench of Justice Shampa Dutt (Paul) observed that the prayer of the husband that the case may be transferred to any Court of law except Burdwan court demonstrated that his only intention was to harass his wife.

The case in brief

It was the revisionist/petitioner’s case that both the husband and the wife got married in February 2010 according to Muslim rites and customs and started living in Hyderabad.

After the marriage, his wife started picking up quarrels on trifle matters expressing her dissatisfaction that the revisionist is not up to her expectation. In fact, the Husband alleged that his wife left him and despite his several attempts, she did not come back.

Thereafter, all of a sudden, he received a notice that his wife filed an application under Section 125 of the CrPC against him before the Court of the Judicial Magistrate, Burdwan, praying for maintenance.

The petitioner contested the said application raising objection regarding its maintainability, however, the Magistrate, in December 2018, rejected the said application on the ground of maintainability.

Challenging the order of the Magistrate, he moved to the HC arguing that his wife is living in Kolkata but only to harass him, she had filed the 125 CrPC plea before the Court in Burdwan.

He submitted that the wife/opposite party had filed a criminal case against him under Section 498A of the IPC in Kolkata and the application under Section 125 of the CrPC had been filed before the Burdwan Court to harass the petitioner.

Contesting this submission, the wife argued that at the time of lodging the case for mental and physical cruelty against herself, she was residing in Kolkata, however, subsequently, she has gone back to her ancestral home in Burdwan and it is convenient for her to pursue her case under Section 125 of the CrPC from there.

Court’s observations

Against this backdrop, the Court, at the outset, noted that as per clauses (b) and (c) of Subsection 1 of Section 126 of the CrPC, the wife and the children can initiate Section 125 CrPC/Maintenance proceedings at the place where they reside.

The Court added that such a benefit is not available for the parents seeking maintenance.

Further, the Court also relied upon Apex Court’s mandate in the case of Vijay Kumar Prasad vs. State of Bihar & Ors., [Appeal (crl.) 431 of 2004] while noting that the top enlarged the venue of the proceedings for maintenance so as to move the place where the wife may be residing on the date of application.

In view of this, taking note of the facts of the case, the Court observed that the wife had chosen to file her application before the Burdwan Court and in support has even filed her voter card, which prima facie proves that she is originally the resident of Burdwan and is now residing there and it is convenient for her to pursue the case at a place where she presently resides.

Consequently, the Court dismissed the revision plea of the husband and upheld the order of the Judicial Magistrate, Burdwan.

Appearances:

For the Petitioner: Ms. Busera Khatun.

For the State: Mr. Joydeep Roy, Ms. Sujata Das.

For the O.P./wife: Mr. Apurba Kumar Dutta.

Case title - Sk. Sirajuddin vs. The State of West Bengal & Anr. [CRR 1055 of 2019]

Case Citation: 2023 LiveLaw (Cal) 1

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