The court upheld the maintenance order under Section 125 CrPC, ruling that claims of prior alimony must be substantiated by evidence.

JUDGMENT :

S.K. Sharma, J.

Heard Mr. I A Talukdar, learned counsel for the petitioner and Mr. P S Lahkar, learned Additional Public Prosecutor, Assam for the State. Also heard Mr. K Kalita, learned counsel for the respondent No. 2.

2. The instant revision is directed against the impugned order dated 25.01.2024 passed by the learned Chief Judicial Magistrate, Bongaigaon in Misc Case No. 21/2021 under Section 125 of CrPC, whereby the learned CJM, Bongaigaon directed the petitioner to pay monthly maintenance to the respondent No. 2/wife and their minor daughter @ Rs. 2,000/- per month for each of them including arrears.

3. The case of the petitioner is that the respondent being the wife of the present petitioner filed maintenance application under Section 125 CrPC seeking monthly maintenance of Rs. 15,000/- (rupees fifteen thousand) for herself and Rs. 20,000/- (rupees twenty thousand) per month for her minor daughter, registered as Misc Case No. 21/2021 before the learned CJM, Bongaigaon.

4. The petitioner stated that he filed his written statement before the learned CJM stating the fact that the marriage took place on 26.06.2010 as per Hindu Religious rites and custom. After the marriage a daughter was born on 26.05.2021. Thereafter due to acrimony created between the parties, the present petitioner and the opposite party No. 2 out of mutual consent in presence of the witnesses filed a mutual divorce petition before the learned District & Sessions Judge, Bongaigaon through T.S(D) Case No. 53/2012 which was allowed and the marriage between the parties was dissolved out of mutual consent by a judgment and order dated 30.06.2014 and a decree was drawn on 11.07.2014 by the said Hon’ble Court of District & Sessions Judge, Bongaigaon. At the time of divorce the petitioner and the opposite party No. 2 mutually decided that the minor daughter namely, Smt. Susmita Ray will stay with her mother that is opposite party No. 2 and the present petitioner shall bear the expenses of the minor daughter. Further, at the time of mutual divorce the opposite party No. 2 took a sum of Rs. 1,50,000/- (rupees one lakh fifty thousand) from the present petitioner as one time full and final maintenance and surrendered the rights to claim further maintenance from the petitioner.

5. Subsequently, in the maintenance case, i.e., Misc Case No. 21/2021 under Section 125 CrPC instituted by the respondent No. 2/wife of the petitioner, the learned Chief Judicial Magistrate, Bongaigaon was pleased to direct the petitioner to pay a sum of Rs. 2,000/- per month to the respondent No. 2/wife and also to pay a sum of Rs. 2,000/- per month in favour of his minor daughter, both effective from the date of application for maintenance.

6. Being aggrieved, the petitioner has preferred this instant revision.

7. The only prayer made in the instant revision is that the petitioner should be exempted from payment of 50% of the outstanding arrear dues on account of maintenance as directed by the learned Trial Court and that he is ready to pay the rest including the monthly maintenance.

8. In justification of the aforesaid relief sought, it is urged that the petitioner had paid an amount of Rs. 1,50,000/- to the respondent No. 2/wife as permanent alimony at the time of divorce by mutual consent and therefore he is not in a position to pay the entire arrear amount as directed by the learned Trial Court.

9. On the other hand, learned counsel for the respondent No. 2 has submitted that a perusal of the order of divorce by mutual consent passed by the learned Trial Court does not reveal any direction for grant of permanent alimony to the tune of Rs. 1,50,000/- and the respondent No. 2 categorica