Naba Kalita vs Minakshi Deka

1) Heard Mr. M.S. Ali, learned counsel for the revision petitioner as well as Mr. M.A.I. Hussain, learned counsel for the respondent.

2) This is a criminal revision petition, filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and the correctness of the judgment

and order, dated 19.5.2017, passed by the learned Principal Judge, Family Court No. 1, Kamrup (M), Guwahati, in F.C.(Crl.) No. 369/2015, granting

monthly maintenance allowance of Rs. 2,000/- and Rs. 1,500/- respectively, to the petitioner and her minor child in a proceeding under Section 125 of

the Cr.PC.

3) The case of the respondent, as petitioner before the learned Family Court, is that, she got married with the present petitioner/respondent on

8.2.2014, and thereafter, she subjected to torture by her husband/accused-revision petitioner and also demanded various articles like, TV, Fridge,

money, etc. and due to her failure to meet such demand, she was subjected to cruelty.

4) In his written statement before the learned trial court, the present petitioner, while admitted their marriage, denied that he subjected the present

respondent to any kind of torture denying further the demand of any money, fridge, TV, etc. According to him, she went on her own to her parental

home and even his attempt to get her back, failed.

5) In view of the fact that the marriage between the parties is an admitted position, the learned trial court was required to decide whether there was

any negligence or refusal to maintain her and her minor child by the present petitioner.

6) After hearing both the parties, and on appreciation of the evidence on record, the learned trial court passed the judgment, as indicated above,

holding that the accused-revision petitioner neglected and refused to maintain the present respondent/his wife and the minor child.

7) During the course of hearing, learned counsel for the revision-petitioner has submitted that the petition for restitution of conjugal rights was initiated

by the present petitioner to bring her back to his company, which was dismissed, as according to him, she refused to come back to the company of the

present revision petitioner. It appears from the evidence of the petitioner that even if the petitioner wants to take her back, she would not oblige him

because of the cruelty meted out to her during her stay with him. The evidence of the witnesses, examined by the petitioner including herself,

demonstrates that there is convincing evidence to the effect that she was subjected to torture which was further strengthened by the fact that the

petitioner, as defence witness, deposed that his wife/respondent used to talk to some other person over mobile phone off and on and she had love

affair with that person since before their marriage. Such unsubstantiated allegation in the evidence, led by the respondent/present petitioner, also

amounts to cruelty. Casting aspersion on his wife, without there being any substantial evidence placed on record, can only be termed as a kind of

torture meted out to his wife travelling beyond the written statement filed by him.

8) That being so, in the considered view of this court, the torture alleged, is clearly emerged from the evidence of the petitioner himself as defence

evidence. That being so, there is no reason to interfere with the findings recorded by the learned trial court holding that the present respondent and her

minor child are entitled to maintenance.

9) So far the quantum of maintenance is concerned, as stated above, Rs. 2,000/- and Rs. 1,500/- respectively, have been awarded to the

petitioner/respondent herein and her minor child as against the claim of the learned counsel for the petitioner, during the course of hearing, that the

present petitioner is a daily wage earner and he has no sufficient means to provide Rs. 3,500/- in total, as maintenance, to the present

petitioner/respondent and her minor child. But, the evidence on record reveals that he is working in a private company, namely, Syntax Ltd., and his

earning is stated to be Rs. 7,000/8000 per month.

10) During the course of hearing, learned counsel for the revision-petitioner has submitted that earlier the petitioner was in the said company and not

now, but, there is no materials placed before this court to substantiate this fact. However, the fact remains that there is no dispute that the petitioner is

an able bodied person, the respondent is his wife and he has a minor child also. Being husband and an able bodied person, he is bound to maintain his

wife and the minor children. Therefore, in the absence any specific evidence coming out from the record as regards the income of the present

petitioner, taking into account the minimum requirement for keeping the body and soul intact of a person for his/her survival, this court is of the view

that Rs. 1,500/- each to the present respondent and her minor child will meet the ends of justice.

11) Therefore, the maintenance allowance granted to the present respondent, i.e. 2,000/-is reduced to Rs. 1,500/- per month, retaining the maintenance

allowance granted to the minor child as it is.

12) Learned counsel for the petitioner has submitted that the matter be referred to the Mediation Centre for settlement between the parties. The

learned Principal Judge, Family Court No. 1, Kamrup (M), Guwahati, will look into this aspect if any of the parties makes a prayer to that effect or the

learned trial court below considers that necessary.

13) With the above observations and direction, this petition stands disposed of accordingly.