Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 1333

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MRIDUL KUMAR KALITA, J.
Md. Abdul Matleb S/o Akbar Ali - Appellant
Versus
Musstt Abida Asgori And Anr – Respondent
Crl.Rev.P.84 of 2022
Decided on : 29-11-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. D. Baruah.
For the Respondent: Mr. R. Ali.

The plea raised in a Revision Petition should have been raised before the Trial Court and cannot be raised for the first time in a Revision Petition.

Headnote:
Maintenance Allowance - Family Dispute - Code of Criminal Procedure, 1973 - Section 397/401, Section 482 - Section 125, Section 127 - Guardians and Wards Act, 1890
Fact of the Case:

The petitioner filed a Criminal Revision Petition challenging the increase in maintenance allowance awarded to the respondent Nos. 1 and 2 by the Family Court. The petitioner argued that the respondent No. 1 had voluntarily withdrawn herself from the petitioner's society without just grounds and that the respondent No. 2 had attained the age of majority. The respondents argued that the maintenance awarded in 2009 was meager and that the petitioner had defaulted in payment, causing severe hardship.
Finding of the Court:

The Court found that the original maintenance allowance was increased from Rs. 2,000 to Rs. 8,000 per month, and an interim relief was granted for the petitioner to pay half of the maintenance allowance till the disposal of the petition. The Court also noted that the petitioner's grounds were considered in the original order and that the plea of the respondent No. 2's majority and the abnormality of the child were not raised before the Trial Court.
Issues: The issues revolved around the voluntary withdrawal of the respondent No. 1, the majority status of the respondent No. 2, the petitioner's paying capacity, and the default in payment of maintenance.
Ratio Decidendi: The Court held that the plea of the respondent No. 1's withdrawal and the respondent No. 2's majority should have been raised before the Trial Court and cannot be raised for the first time in a Revision Petition. The Court also considered the increase in cost of living and the petitioner's regular income in upholding the maintenance increase.
Final Decision: The Criminal Revision Petition was dismissed, and the order enhancing the maintenance allowance was upheld.

JUDGMENT :

Mridul Kumar Kalita, J

1. Heard Mr. D. Baruah, learned counsel for the petitioner. Also heard Mr. R. Ali, learned counsel for the respondents.

2. This Criminal Revision Petition has been preferred by the petitioner, Md. Abdul Matleb under section 397/401, read with section 482 of the Code of Criminal Procedure, 1973 impugning the Order dated 22.12.2021, passed by learned Principal Judge, Family Court No. 1. Kamrup (M), Guwahati in Misc. Case No. 201/2019 in F.C (Crl) Case No. 213/2007, whereby the maintenance allowance awarded to the respondent Nos. 1 and 2 was increased from Rs. 2,000/-to Rs. 8,000/-per month (Rs. 4,000/-to each of the respondents w.e.f. from the date of the order i.e. 22.12.2021).

3. The facts relevant for adjudication of the instant revision petition, in brief, are as follows:-

i. That the present petitioner and respondent No. 1 were married on 20.02.2002 according to Islamic Shariat and their marriage was also registered in the Kazi Office, Nalbari and a male child, i.e. respondent No. 2 was born out of their wedlock on 09.06.2003.

ii. That some matrimonial dispute broke out between petitioner and respondent No. 1 and thereafter they started living separately. The respondent No. 1 started living in her parental house. During such separation, the respondent No. 1 had filed a petition under section 125 of the Code of Criminal Procedure, 1973 claiming maintenance from the present petitioner for herself and her son. The said petition was registered as F.C. (Crl.) Case No. 213/2007. In the said proceeding, by order dated 06.11.2009, the Family Court, Kamrup (M), Guwahati directed the present petitioner to pay a maintenance amount of Rs. 2,000/-per month to the respondents (Rs. 1,000/- each).

iii. It is pertinent to mention herein that in the meanwhile, the petitioner had filed an application before Principal Judge, Family Court for restitution of conjugal rights alleging that the respondent No. 1 has withdrawn herself from his society without any just ground and the said petition was allowed by order dated 04.08.2008 passed in Case No. F.C (C) No. 264/2007.

iv. Being aggrieved by the order dated 06.11.2009 passed in F.C. (Crl.) Case No. 213/2007, the present petitioner preferred a Criminal Revision Petition which was registered as Criminal Revision Petition No. 442/2009 before this Court which was dismissed for default of the present petitioner.

v. The present petitioner had also preferred an application under Section 10/ 25 of the Guardians and Wards Act, 1890 for claiming custody of his minor son. However, the said petition was also rejected by the Principal Judge, Family Court No. 1 Kamrup by its judgment dated 20.07.2016, passed in Misc. (J) Case No. 188/2012.

vi. Thereafter, the respondent No. 1 filed an application under section 127 of the Code of Criminal Procedure, 1973 for enhancement of monthly maintenance allowance which was initially awarded to the respondents. The said petition was registered as Misc. Case No. 201/2019 in F.C. (Crl.) Case No. 213/2007. Thereafter, by order dated 22.12.2021, the learned Principal Judge, Family Court No. 1, Kamrup (M) Guwahati allowed the prayer of the respondents and enhanced the maintenance allowance to be paid to the respondents by the present petitioner to Rs. 8,000/- per month (Rs. 4,000/-to each of the respondents) from the date of the order.

vii. It is also pertinent to mention herein that in the meanwhile the petitioner married for the second time and have two sons from his second marriage which was studying in Class-IV and Class-VI respectively.

4. Being aggrieved by the aforesaid order dated 22.12.2021, the instant revision petition has been preferred by the present petitioner.

5. Mr. D. Baruah, learned counsel for the petitioner, has submitted that the learned Principal Judge, Family Court No. 1, Kamrup, Guwahati has erred in passing the impugned order by overlooking the fact that the respondent No. 1 had voluntarily withdrawn herself from the society of th

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