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2023 Supreme(Gau) 582
THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MALASRI NANDI, J.
Mustak Ahmed, S/o. Late Ali Ahmed – Petitioner
Versus
Sakila Banu, W/o. Md. Mustak Ahmed, D/o. Late Md. Ismail - Respondent
Crl. Rev. P. No.68 Of 2022
Decided On : 23-06-2023
For the Petitioner: Mr. U.J. Saikia.
For the Respondent: Mr. N.J. Khataniar.
Point of Law: Section 125 Cr.P.C. is meant to achieve a social purpose. Object is to prevent vagrancy and destitution.
Headnote:
Criminal Procedure Code, 1973 - Section 401, 125 – Indian Penal Code, 1860 - Section 498A, 506 - Order for granting maintenance - Harassment of woman to meet any unlawful demand - Petitioner filed an application against judgment and order passed granting maintenance to respondent/wife and for her child – Petitioner being an able bodied person, he is obliged to earn by legitimate means and maintain his wife and minor child - Para 18.
Finding of the Court:
Respondent/wife has no source of income, she used to stay in house of her parents - Petitioner has neither has taken care of his wife nor taken any information about them - Petitioner also admitted in his evidence that since his wife left his home, he did not enquire about her or her son and not provided any maintenance to them - Though, it has been submitted by learned counsel for petitioner that except Rs.8,000/-, petitioner has no other source of income but Court is neither impressed nor is ready to accept such submissions as it appears from evidence of D.W.1 and D.W.2 that they have a commercial building complex which consists of 16(sixteen) commercial shops and building is located in Zoo - It has not come out from evidence of witnesses that petitioner is an ailing person having some diseases and is not in a position to earn anything - Petitioner being an able bodied person, he is obliged to earn by legitimate means and maintain his wife and minor child - Court has no hesitation in holding that though petitioner has sufficient source of income and is able bodied, has failed and neglected to maintain respondent/wife and her child.
Result: Petition dismissed.
JUDGMENT :
Heard Mr. U.J. Saikia, learned counsel for the petitioner. Also heard Mr. N.J. Khataniar, learned counsel for the respondent.
2. The petitioner being the husband of the respondent/wife filed an application under Section 401 Cr.P.C. against the judgment and order dated 07.05.2021 passed by the learned Principal Judge, Family Court II, Kamrup(M) in F.C.(Crl.) Case No. 377/2016 granting maintenance of Rs.7,000/- per month to the respondent/wife and for her child.
3. The respondent/wife filed an application under Section 125 Cr.P.C. before the Family Court praying for granting maintenance for her and her minor child on the ground that she was unable to maintain herself. In the said petition, the respondent/wife contended that she got married to the petitioner and after their marriage, they lived together as husband and wife and out of their wedlock, a male child was born. It was alleged by the respondent/wife that the petitioner and his sister demanded money from the respondent/wife amounting to Rs.4 lakh to set up a new business for the petitioner and when the respondent/wife expressed her inability to fulfill the demand, the petitioner and his family members assaulted her and drove her out from her matrimonial home along with her son. Subsequently, though the respondent/wife was taken back in her matrimonial home but ultimately she was compelled to leave the house of her husband i.e. the petitioner and a case was registered before the All Women Police Station against her husband i.e. the petitioner under Section 498A/506 IPC.
4. Before the Family Court, the petitioner has submitted his written statement wherein he alleged that the petition for maintenance is not maintainable both in law and fact and is liable to be dismissed since the respondent has deserted the petitioner. According to the petitioner, he is an ailing person and his only source of income is his rented house from which he used to earn Rs. 8,000/-per month. It is alleged that the respondent has caused various mental torture towards him and his family members and left his house with all his belongings and was not willing to come back. It is also stated in the written statement that from the rented rooms of the residential building, he and his brother used to get Rs.25,000/-per month and the same is divided amongst them and the petitioner only gets Rs.8,000/-per month. Under such circumstances, the petitioner is not in a position to pay Rs.7,000/- to the respondent for her maintenance and her minor son.
5. It has been submitted by the learned counsel for the petitioner that the impugned order granting maintenance has been passed without being any material on record to show the paying capacity of the petitioner. Therefore, the same is perverse.
6. It is further submitted that the order for granting maintenance has been without there being any specific statement of the claimant regarding the source of income of the petitioner. The learned Family Court illegally directed to pay Rs.7,000/-to the respondent/wife and her child without coming to a finding in respect of his income and the order was passed purely on surmises and conjectures. Therefore, the same is illegal.
7. It is also the submissions of the learned counsel for the petitioner that the granting maintenance to the extent of Rs.7,000/-per month against the petitioner whose only source of income is his rented rooms is highly disproportionate and as such, the order passed by the learned Family Court is bad in law and liable to be set aside.
8. On the other hand, the learned counsel for the respondent/wife has argued that the brother of the petitioner who was examined before the learned trial court as D.W.2 has admitted that the building is a commercial complex building and they have 16(sixteen) commercial shops in their building. Under such circumstances, it cannot be said that only income of the petitioner and his brother are Rs.25,000/- in a month and he gets Rs.8,000/- as his share.
9. I have consi
