Back
2019 Supreme(Gau) 569
IN THE HIGH COURT OF GAUHATI
RUMI KUMARI PHUKAN, J.
Mozibor Rahman - Appellant
Versus
Jabeda Khatun - Respondent
Crl. Rev. No. 366 of 2010
Decided On : 11-02-2019
Advocate Appeared:
For the Appellant :M.H. Talukdar, Advocate
For the Respondent:S.K. Saharia, Advocate
Headnote:
Criminal Procedure Code –Section 125 – Issue on granting Maintenance –Learned counsel for the petitioner has vehemently contended that the decision arrived at by the learned Sessions Judge is wholly unsustainable because law is not a one-sided affair and the court of law has to appreciate and balance the evidence of both parties to ferret out the truth –It is contended that granting maintenance the necessary ingredient to be proved by the respondent(wife) is that there was a refusal on the part of the husband to provide maintenance to his wife who is unable to maintain herself –Held, In the case at hand, the petitioner is the third husband of the respondent and she chose to reside in the house of her second husband along with her son since the marriage with petitioner in 1992, there was no other allegation whatsoever in the long tenure of marriage but suddenly it is alleged that petitioner assaulted respondent demanding Rs. 10,000 and left her alone and immediately after a week of the incident she filed the case for maintenance –In the present background of the case the very filing of the case by respondent wife is found to be out of vengeance, without any lawful excuse to avail the benefit of the provision –The view taken by the leaned trial court was proper in dismissing the case of the petitioner on the basis of materials on record, which is hereby upheld –The learned Sessions Judge has failed to appreciate the matter in proper perspective of law and facts and hence the impugned order is unsustainable – Petition disposed of
JUDGMENT :
RUMI KUMARI PHUKAN, J.
1. Heard Mr. MH Talukdar, learned counsel for petitioner and Mr. SK Saharia, learned counsel for respondent.
2. This revision is directed against the order of the learned Sessions Judge, Bongaigaon dated 14.07.2010 in Crl. Motion case 11(2)/2009 whereby the order of the learned SDJM(M), North Salmara dated 26.2.2009 in MR case 28/2008 u/s. 125 of the CrPC is set aside and granted Rs. 500/- maintenance per month to be paid by the petitioner.
3. Respondent in her 125-CrPC petition seeking Rs. 2,500 maintenance per month from the petitioner stated that she is the wife of the petitioner and their marriage was solemnized on 24.1.1992 as per the shariat and they lived their conjugal life. She was allegedly tortured physically and mentally after marriage and caused injury to her eye and bearing all this she lived with her husband. Petitioner on 22.4.2008 allegedly demanded Rs. 10,000 from her and beat her up fending for herself whereupon she is living alone. Respondent stated that since 22.4.2008 the petitioner did not see her nor did provide maintenance and has neglected her. Her husband is a mason earning Rs. 10,000 to 15,000 per month.
4. Petitioner in his written statement has admitted that the respondent is his wife. The respondent married twice before marrying him and he is her third husband. She has a son named Jobed from her first husband and after his death she married one Nobi Hussain and from whom she has a son Nur Islam and after his death she married the petitioner. Her son Jobed Ali is living separately and she is living with her son Nur Islam. Petitioner married the respondent but never gone to his house. Jobed Ali once beat her up and injured her eye and the matter was amicably settled by the villagers.
5. Petitioner in the WS denied to have beaten respondent demanding money and left her house. He married earlier and had 2 sons and a daughter before marrying the respondent. He married off his daughter attending the ceremony on 24.4.2008 despite restraining by the respondent and the respondent filed the 125-CrPC petition only to harass him for attending the marriage ceremony of his daughter. He has no landed property whereas the respondent/wife has eight bighas of land given by her second husband and is happily living with her son Nur Islam there. Respondent has income and is able to maintain herself and hence is not entitled to any maintenance from him.
6. The learned trial court formulated the following points to decide the 125-CrPC petition filed by the respondent:
(i) Whether the first party case is maintainable?
(ii) Whether the second party left 1st party and he is without any reasonable and just cause refused to maintain the first party and the first party is unable to maintain herself?
(iii) Whether the first party is entitled maintenance from the second party and if so, what should be the quantum?
7. In support of their respective cases both parties adduced evidence of on their part. Respondent wife) as first party examined three witnesses in support of her case. In her statement the respondent(wife) reiterated her statement as given in the petition and in cross- examination she has admitted all about her earlier two marriages apart from the petitioner and also the fact that she purchased one plot of land before marrying the petitioner and constructed a house thereon and she is residing in the said house with the son from her second husband and the second party resided in his own house.
8. Second party also examined two witnesses in support of his case that there was no such demand of money and assault on the first party and actually the son of the first party assaulted her for which she went to the police also. The learned trial court on appreciation of evidence held that the first party after her marriage with the second party lived in the house of her second husband with her son and she never stayed in the house of the second party, so the allegation that she has been driven out is a b
