Dambarudhar Boro vs Minakshi Narzary

Heard Mr. A.K. Hussain, learned counsel for the petitioner/husband as well as Mr. A. Kundu, learned counsel appearing for and on behalf of the

respondent/wife.

By way of this petition u/s.482 CrPC, the petitioner has challenged the order of the revisional Court, whereby the learned Court has directed the

present petitioner to pay maintenance to the respondent/wife along with maintenance to the child, whereas the learned trial Court had not provided any

maintenance to the respondent/wife, as prayed for in her petition filed u/s.125 of the CrPC.

I have heard the submission of learned counsel for both the parties.

The case in a nutshell is that the respondent/wife filed a petition u/s.125 CrPC, before the learned SDJM, Bijni praying for maintenance for herself

and her minor child on the ground that her husband driven her out from her matrimonial home along with her son by committing torture on the demand

of money etc. and as a result of which she is now residing in her parental house since the year 2014, along with the minor child and the

petitioner/husband has not paid any maintenance to her. According to the respondent/wife, the present petitioner is a retired army personnel and draws

Rs.15,000/- per month as pension being a retired army personnel and that apart, he has landed properties and clothe store, having income of

Rs.70,000/- per month from all sources of income.

The prayer of the respondent/wife was resisted by her husband (petitioner herein) by filing written statement that since October, 2014, the

respondent/wife returned to her parental home on her own will and the present petitioner persuaded her to return to his house but she turned down his

request. However it is his plea that he regularly provided maintenance to her from his work place and finally he got voluntary retirement from his

service and also provided financial assistance to her to open a garment shop at Panbari and she has sufficient income to maintain herself.

Both the parties adduced evidence in support of their respective claims and the learned trial Court at the conclusion of the trial has held that

although the marriage between the parties and the birth of the child is not disputed and her husband has sufficient income but the learned trial Court

has held that the wife has income from the garment shop and able to maintain herself and hence she is not entitle to any maintenance. The learned

trial Court has directed the petitioner to pay Rs.4,000/- to the son of the parties from the date of filing of the petition.

The respondent/wife preferred a revision petition against the aforesaid order and the revisional Court on appreciation of the matters on record

including the evidence, it was held that there is no specific evidence as regards the income of the respondent/wife that she is able to maintain herself

and only on the basis of the evidence that the respondent /wife used to look after the garment shop of her father, it cannot be held that she is able to

maintain herself. Modifying the order of the trial Court, the revisional Court directed the petitioner/husband to pay Rs.4000/- per month to his wife in

addition to the maintenance allowance granted earlier to the minor son by the trial Court.

Challenging the aforesaid order of the revisional Court, the present petition has been preferred to quash the finding of the revisional Court as

regards the maintenance directed to be provided to his wife as the same is stated to be bad in law and liable to be quashed and set aside.

The learned counsel for the petitioner in his arguments has placed reliance into the pleadings between the parties as well as the evidence on record

to submit that it is an admitted position that the petitioner/husband is running a garment shop having sufficient income and as such the

petitioner/husband is not liable to pay any maintenance to his wife. The petitioner however is ready to pay the maintenance to his minor son, as

directed by the trial Court.

The learned counsel for the respondent has however resisted such submission of the petitioner’s side that the respondent/wife has sufficient

income to maintain herself. Rather it has been contended that the very contention raised by the respondent/wife that the petitioner/husband has

sufficient income from the clothes store as well as from the landed property is not challenged/rebutted by the petitioner during the course of evidence

and he has suppressed his income by not proving the same. Referring to the pleadings between the parties, it has also been submitted that the

petitioner husband took recourse of falsehood by raising wild allegation against his wife that she eloped with someone else and stayed separately from

him. But such an allegation is not proved at all and he has raised inconsistent plea in his written statement as well as in course of evidence.

Pursuant to the submission made before this Court, I have also gone through the pleadings between the parties and the evidence on record. It is

true that the petitioner/husband, at the time of filing the written statement has not raised the plea that his wife fled away with another boy and it is only

in his evidence, he has raised the allegation which is not proved at all.

Apart from this inconsistency taken by the petitioner, it is to be noted that he himself has failed to adduce any proper evidence as regards his own

income. Rather in his cross-examination, he has admitted that he has a clothe store in the market and has also landed property which has given in

‘adhiar’ basis and he also received certain pensionary benefits amount to Rs.5 lakhs after retirement apart from regular pension.

After scrutiny of the evidence on record, it is found that the learned revisional Court has rightly appreciated the matter that the learned trial Court

has erred in law while arriving in the fact that the respondent wife has income to maintain herself. On the contrary, the evidence on record reveals

that the respondent/wife used to look after/ attend the garment shop of her father but there is no any specific evidence that she earns from such

business of her father also, not to speak of any specific amount she earns from the said shop. Moreover, there is also no any evidence that the

petitioner/husband provided money to open the said shop and she is earning sufficiently to maintain herself. That apart, the husband cannot thwart out

his obligation towards his wife by denying his legal and moral obligation to maintain his son and wife.

The learned revisional Court has appreciated the evidence in proper perspective of law and facts and there appears no occasion to interfere with

such findings arrived at by the learned revisional Court. That being the position, the petitioner who is earning from his pension as well as business and

cultivation, should also provide Rs.4,000/- per month to the respondent/wife, apart from maintenance of Rs.4,000/- to the children. There appears no

occasion to interfere with the order so passed by invoking extraordinary power u/s.482 CrPC.

The petitioner will clear all the pending arrears, if any, before the learned trial Court.

Present petition stands dismissed.