Calcutta High Court (Appellete Side)
Tamal Chatterjee vs Unknown on 30 March, 2026
30.03.2026
Court No.34
Item No. 3
sg
CRR 4934 of 2023
with
I.A. No. CRAN 1 of 2024, CRAN 2 of 2025
In the matter of: Tamal Chatterjee
...Petitioner.
Ms. Rita Patra
Ms. P.Das
Mr. Pradip Bose
...for the petitioner.
Mr. Satyam Mukherjee
Mr. Purnendu Sekhar Ghosh
...for the o.p.
1.
This revisional application under Section 482 of the Code of
Criminal Procedure, 1973 has been filed for quashing of entire
proceeding initiated under Section 125 of the Criminal Procedure
Code, pending before the learned 2nd Judicial Magistrate, Barasat.
2. The instant application is filed by the petitioner/husband against
the opposite party no.2 /wife. The Learned advocate representing the
petitioner submits that marriage was solemnized in the year 2018 and
a female child was born from their wedlock. The Opposite party no.2
voluntarily left the matrimonial home without any cogent explanation
and despite having sufficient means to maintain herself, has filed
application under Section 125 Cr.P.C. only to put pressure upon the
petitioner. It is further submitted that in order to have an order of
maintenance, the Opposite Party no.2/applicant ought to have made
out a case that either she was driven out from such matrimonial home
or she had no sufficient means to maintain herself. That apart she
also filed an application for custody of the child which glaringly shows
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that she is not without any income as she not only can maintain
herself but also to her child. Accordingly prays for quashing of the
entire application. That apart the petitioner is presently jobless and
hence she is not in a position to maintain herself.
3. On the other hand, Opposite Party raises vehement objection. At
the outset the learned advocate has raised the issue of maintainability
of the revisional application. It is submitted that the petitioner could
have raised all these issues before the learned court of Magistrate by
filing written objection but only to evade the said proceeding and to
cause delay, has filed this revisional application. Due to the pendency
of this application, no interim order is granted in connection with said
proceedings till date when the proceeding was filed long back in the
year 2023. Accordingly prays for dismissal of this revisional
application.
4. Heard the submissions. The proceeding pending before the
learned court of Magistrate was filed under Section 125 Cr.P.C by the
opposite party no.2 with a prayer for an amount of Rs. 15,000/- per
month as maintenance and such application was filed in the year,
2023 .The record reveals that after receiving summons present
petitioner appeared before the learned court of Magistrate but did not
file any written objection but filed this revisional application in the
month of June, 2024.
5. On perusal of the order dated June, 2, 2024 it can be found that
the Learned co-ordinate Bench specifically held that the pendency of
the present revisional application will not deter the learned court to
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proceed with the case. However, the submission of the Learned
Advocate representing Opposite Party discloses that there is no
progress and the matter was not even heard for the purpose of hearing
of interim application. After hearing the rival contention it is seen that
the question falls for consideration, whether any proceeding under
Section 125 Cr.P.C can be quashed by exercising the inherent power
under Section 482 Cr.P.C by this court or not. In this regard, it is
pertinent to revisit the provision itself which starts with,
125 n:I if any person having means neglects or refuses to
maintain-
(a)His wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself,
or
(c) his legitimate or illegitimate child(not being a
married daughter) who has attained majority,
where such child is, by reason of any physical or
mental abnormality or injury unable to maintain
itself, or
(d) his father or mother, unable to maintain
himself or herself, a Magistrate of the first class
may, upon proof of such neglect or refusal, order
such person to make a monthly allowance for the
maintenance of his wife or such child, father or
mother, at such monthly rate, [xxx] as such
Magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time
direct;
PROVIDED FURTHER that the Magistrate may,
during the pendency of the proceeding regarding
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monthly allowance for the maintenance under this
sub-section, order such person to make a monthly
allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses
of such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as
the Magistrate may from time to time direct;
Provided also that an application for the
monthly allowance for the interim maintenance
and expenses of proceeding under the second
proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of
notice of the application to such person.]
Explanation; For the purposes of this
Chapter:-
(a)
“Minor” means a person who, under the
provisions of the Indian Majority Act,
1875(9 of 1875) is deemed not to have
attained his majority;
(b)
"wife" includes a woman who has been
divorced by, or has obtained a divorce
from, her husband and has not re-
married.
(2) Any such allowance for the maintenance or
interim maintenance and expenses for
proceeding shall be payable from the date of
the order, or, if so ordered, from the date of the
application for maintenance or interim
maintenance and expenses of proceeding, as
the case may be]
5(3) If any person so ordered fails without
sufficient cause to comply with the order, any
such Magistrate may, for every breach of the
order, issue a warrant for levying the amount
due in the manner provided for levying fines,
and may sentence such person, for the whole or
any part of each month’s [allowance for the
maintenance or the interim maintenance and
expenses of proceeding, as the case may be,]
remaining unpaid after the execution of the
warrant, to imprisonment for a term which
may extend to one month or until payment if
sooner made.
PROVIDED that no warrant shall be issued
for the recovery of any amount due under this
section unless application be made to the court
to levy such amount within a period of one year
from the date on which it became due;
PROVIDED FURTHER that if such person
offers to maintain his wife on condition of her
living with him, and she refused to live with
him, such Magistrate may consider any ground
of refusal stated by her, and may make an
order under this section notwithstanding such
offer, if he is satisfied that there is just ground
for so doing.
Explanation: If a husband has contracted
marriage with another woman or keeps a
mistress, it shall be considered to be just
ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an
[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as
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the case may be,] from her husband under this
section if she is living in adultery, or if,
without any sufficient reason, she refuses to
live with her husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour
an order has been made under this section is
living in adultery, or that without sufficient
reason she refuses to live with her husband, or
that they are living separately by mutual
consent, the Magistrate shall cancel the order”.
6. Primarily on perusal of the provision it can be found the
provision incorporated with the object to maintain wife, children and
parents who have no sufficient means of maintaining themselves.
Furthermore the Learned Magistrate will pass such order of
maintenance if it is proved that negligence or refusal was
inexistence. It further makes provision that no wife shall be entitled
to receive any allowance if without sufficient reason she refuses to
live with her husband. The wife will first prove her case as to
whether she is entitled for such order of maintenance.
7. The inherent power under Section 482 of the Cr.P.C. of the
High Court is intended to prevent the abuse of process of the Court
and to secure ends of justice. This provision can be exercised for the
purpose of quashing of First Information Report/ criminal
complaint/charge sheet or any order passed in connection with a
criminal proceeding.
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8. The question arises whether a proceeding under section 125
Cr.P.C is a criminal proceeding which can be quashed by exercising
power under section 482 Cr.P.C.
On perusal of a case reported in Bhuwan Mohan Singh vs Meena
and Others AIR 2014 SC 2875 the Court observed that section 125
Cr.P.C. was conceived to ameliorate the agony, anguish and financial
sufferings of a Woman who left her matrimonial home for the reasons
provided in the provision so that some suitable arrangements can be
made by the Court, and she can sustain herself and for her children if
they are with her .The Hon’ble Supreme Court took note of a three
Judges Bench in Vimla (K) vs. Vera Swamy (K) ,1991 (2) SCC 375
while discussing about the basic purpose under Section 125 Cr.P.C
opined that Section 125 Cr.P.C is meant to achieve a said purpose .
The special is to prevent vagrancy and destitution. It provides a speedy
remedy for supply of food, clothing and shelter to the deserted wife.
9. In Badsha vs Urmila Badsah Godse & Anr. (2014)1 SCC 188,
the Supreme Court held that “the provision of maintenance would
defini8tely fall in this category which aims at empowering the destitute
and achieving social justice or equality and dignity of the individual,
while dealing with cases under this provision, drift in the approach
from “adversarial” litigation to “social context” adjudication. It was
further observed that the standard of proof required in civil proceeding
is preponderance of probabilities whereas in criminal prosecution
conviction requires proof beyond reasonable doubt and such principle
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cannot be applied per se to a proceeding for maintenance under
Section 125 Cr.P.C .
10. In the case of Rina Kumari @Rina Devi @ Reena vs Dinesh
Kumar Mahato in 2025 INSC 55, the Hon’ble Supreme Court
discussed the provision which is analogous to and continuance of
Section 488 of erstwhile Cr.P.C . The Hon’ble Supreme Court
discussed the decision of Chaturbhuj vs. Sita Bai AIR 2008 SC 530
where it was observed that the object of maintenance proceeding is not
to punish a person for his neglect but to prevent vagrancy and
destitution of a deserted wife by providing her food, clothing and
shelter by speedy remedy. It is decided by the Hon’ble Supreme Court
that maintenance proceedings under Section 125 Cr.P.C are
essentially civil in nature and should not be equated with criminal
proceedings merely because they invite a penal consequence.
11. Therefore, from the above observations and the law laid down
in this regard when the object and purpose of incorporation of the
provision being a beneficial legislation, to provide social security and
financial assistance to the spouse, child and parents, at any point of
time such a proceeding initiated under Section 125 Cr.P.C. praying for
maintenance, and a proceeding cannot declared as be the abuse of
the process of law Therefore in exercise of power under Section 482
Cr.P.C. even if primarily it is found that the applicant is not entitled
to receive the maintenance .
12. It is settled law that the present petitioner had ample
opportunity to place his case before the learned Magistrate by way of
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written objection disclosing his exact income and the financial status,
he is enjoying supported with affidavits disclosing assets and liability
declarations in terms of celebrated decision of Rajnesh Vs. Neha
reported in (2021) 2 SCC 324.
Even the issue of maintainability as regard the maintenance of the
wife, can very well be raised before the learned court of Magistrate who
can decide that after hearing the parties. The objection to the
maintainability is raised by the present petitioner being the husband
as the wife left the matrimonial home without assigning any reason
and that itself disentitles her from claiming any maintenance, which
ought to have been raised before the learned magistrate and the said
ground can no way be a reason to maintain this application under
Section 482 Cr.P.C for quashing the entire proceeding under Section
125 Cr.P.C. Hence there is no merit in this application.
13. Therefore, the petitioner is directed to appear before the learned
court of Magistrate and must participate in the proceeding and filed
his written objection as directed by the learned Magistrate.
14. Accordingly this criminal revisional application stands dismissed
without cost.
15. The Learned Magistrate is directed to make all endeavour to
dispose of the proceeding which is pending since 2023 without
granting any unnecessary adjournments to either of the parties.
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16. Criminal Section is directed to supply certified copies of this
order to the parties, if applied for, upon compliance of all necessary
formalities.
[Chaitali Chatterjee (Das), J.]
