Krishna Goswami vs Sudhan Goswami

B.N. Singh Neelam, J.—This Criminal Revision Petition is so preferred by the Petitioner Smt. Krishna Goswami u/s 19(4) of the Family Courts Act, 1984 read with Section 397 Code of Criminal Procedure challenging the propriety of the judgment and order dated 7-7-97 so passed in a proceeding under Section-125 Code of Criminal Procedure by the learned Principal Judge, Family Court, Guwahati in Case No. FC (Criminal) 137/92. In the said proceeding the present Petitioner Smt, Krishna Goswami happened to be the first patty whereas her husband Shri Sudhan Goswami hajppened to be the party-opposite party. The operative part of the judgment under challenge runs as under:

The Respondent avers that she has been pulling by doing private tuition and residing in a rented house. She has however not disclosed how much she is earning by doing private tuition. It appears that she has capacity to maintain herself out of the income received from private tuition. The Respondent is therefore liable to pay maintenance allowance to his daughter only in custody of the Respondent. Though the Respondent has denied having any source of income. I am inclined to believe that he has sufficient income to maintain himself and his minor daughter and as such he is liable to pay maintenance allowance to his minor daughter.

It is therefore ordered that the Respondent shall pay maintenance allowance at the rate of Rs. 400 per month to his minor daughter from the date of the petition till she is married away or attains majority.

The petition is accordingly partly allowed. Sd/- B.K. Das, Principal Judge, Family Court, Guwahati, Kamrup.

In the background of the impugned order passed, the case of the present Petitioner Smt. Krishna Goswami is that the learned Court below had erred in not directing the husband-OP as to pay maintenance to her and that the child (Minor girl) should have also been given maintenance of Rs. 500 in place of Rs 400. The prayer portion of this petition so filed by the lady in this revision petition runs as under:

In the premises aforesaid, your humble Petitioner prays to your Lordship to be graciously pleased to admit this revision application, call for the records of the case and issue a notice upon the Respondent to show pause as to why the impugned judgment and order dated 7.7.97 passed by the learned principal Judge, Family Court, Guwahati in Case No. FC(GRL) 137/92 should not be modified granting monthly maintenance of Rs. 500 each to the Petitioner and to her minor daughter and upon hearing the parties.

The ground so, taken for modification in the impugned order mainly are that in the compelling circumstance the present Petitioner had no alternative but to make separate arrangement when it had become impossible for her to remain in the house of her husband and she is hand to mouth and after taking a house on rent meaning thereby not residing with her parents or brothers she is doing tuition teaching some of the students which is a temporary phase and she may not get tuition in any moment in future and her doing tuition for the time being earning a meager amount would not have been treated by the learned Court below as a means to deprive her for getting the maintenance. It is further pointed out that in a proceeding u/s 125 Code of Criminal Procedure the onus lies upon the husband to establish that his wife is able to maintain herself and only in that case he could be exonerated from making the payment of the maintenance amount. Inability of wife to maintain herself though is a condition precedent to the very maintainability of the petition but it is for the husband to establish by adducing cogent evidence as to the lady being able to maintain her self and by looking into the evidence available on record in the instant case it transpires that the learned Court below has not taken pains as to decide this issue in the right respective rather the key factor involved for consideration was as to whether she was able to maintain herself. Her prayer for maintenance cannot be dismissed even if some of the relations and friends are willing to maintain her and even if the wife is an able bodied and possesses an earning potentiality she should not be presumed to be able to maintain herself unless the husband on the other hand establishes that the income so received by her is such as not to maintain her standard of living modestly consistent with her social status.

Mr. P.C. Borpujari, the learned Counsel for the Petitioner arguing the case of the Petitioner lady has pressed into service all the points so mentioned in this petition as good grounds for interference with the impugned order and on the line that the husband has in the instant case utterly failed to prove that actual income of the lady out of tuition, how much rent she has to pay for the house and also with regard to the OP having sufficient means of income not only to maintain her child but also his wife the present Petitioner who is not in a position to maintain herself. On the point that the onus lies upon the husband to adduce sufficient evidence on the point of the income of the wife as to exonerate him from paying any maintenance Mr. P.C. Borpujari, the learned Counsel has relied upon some of the reported cases. They are (1984) 2 GLR page 396 (Dulan Chandra Bora v. Bonalata Bora) particularly Para 12 is referred. It is in this background submitted that true it is that the husband is not liable to pay the maintenance if the wife has got ample income and means of her own and cannot thus be allowed to take measure against the husband filing a petition u/s 125 Code of Criminal Procedure as punitive weapon with vindictive move against her husband but burden is upon the husband to prove that the wife is able to maintain herself, which in the instant case has not absolutely been done. In support of his this contention Reported case 1988 Cr. L.J. page 125 Orissa (Raibari Bahara v. Maharaj Baribahara) is referred. Mr. Borpujari, the learned Counsel has also referred to 1933 Cri. L.J. NOC 75 (Bangshilal and Ors. v. Magni Rai and Ors.) and it is submitted that instead of the wife proving the negative the husband is to prove that wife is able to maintain herself. Potential earning capacity of the wife also should not be and cannot be taken into consideration for grant or non-grant of maintenance to her. The lady requires reasonable needs to be fulfilled and for such moderate living in such a case it is for the husband to satisfy the court that the lady had her own income to meet the expenses. Concluding his argument, Mr. Borpujari, the learned Counsel submits that the same in the instant case has been reasonably not proved by the husband and hence the impugned judgment requires interference and maintenance of Rs. 500 per month be awarded to the lady and the maintenance so granted to the tune of Rs. 400 for the child be also enhanced by Rs. 100 per month.

Mr. B.R. Dey, the learned Counsel for the OP-husband is also heard. It is pointed out that after going through the pros and cons and in the background of the evidence adduced on behalf of both the sides the learned Court below has come to the right conclusion which does not require any interference. It is further pointed out that the lady herself admitted of her doing tuition and earning money also being in a position as to stay in a rented house for long period and thus since this revision petition has got no merit the same be dismissed. It is also submitted that the learned Court below has applied judicial mind and on being prima facie satisfied, the impugned order was passed on the basis of the evidence which be thus not interfered with.

After hearing the learned Counsel for both the sides. I have Carefully gone through the contents of this revision petition with that of the evidence adduced by the parties before the learned Principal Judge. Family Court, In the circumstances when the onus lies upon the husband OP in proceeding u/s 125 Code of Criminal Procedure as to satisfy the Court with regard to the wife having that much of personal income as to maintain herself giving a ground for his being exonerated from paying the maintenance, the husband was expected, in the instant case in the background of the said principle, of adducing evidence on that point as also with regard to the husband having sufficient means or not, the Court below would have looked into this aspect also and by looking into the oral evidence available on record it transpires that at one hard when the petition or lady before the learned Court below claims of the husband having sufficient means because of his having umbrella factory, bank balance, automobile and own houses which is controverter by the husband stating that he had once a taxi, the houses got burnt in Shillong disturbance taking place sometime back, the husband claimed to have residing in a rented house and the factory not being of his own but of some of some of his relation. So on the point of personal income of the lady only this has come in the evidence that she was having some amount of money by means of tuition but nowhere it has come out how much money she earned out of tuition, how much of rent she has to pay and whether the tuition she was holding was clouded with uncertainty as claimed by the lady? All these questions, in my considered Opinion, are to be discussed threadbare as to arrive at a conclusion whether the lady is entitled to grant of maintenance which in the instant case has not been done and the matter is not looked in that light. As regard the payment of maintenance to the minor girl the Court has already granted maintenance of Rs. 400 per month which need not require any interference. But as regards the claim so put by her for the maintenance to be awarded to the present Petitioner for arriving at a right conclusion and also to meet the ends of justice in the instant case the situation so warrants that the matter on this point be remanded back to the learned Court below who will decide this matter afresh on this issue after giving opportunity to the parties as to adduce evidence which may facilitate the learned Court below as to decide the matter whether the present Petitioner (wife) can claim maintenance or as to whether the husband is liable to pay the maintenance?

With the above observations and direction the matter stands accordingly disposed of.