ORDER

29.09.2021 Heard Mr. I.A. Talukdar, learned counsel for the petitioner and Mr. N. Uddin learned counsel for the respondent No. 1. Also heard Mr. D. Das, learned Addl.

Public Prosecutor for the State/respondent No. 2.

2. This criminal revision petition under Sections 397/401 of the Cr.P.C. has been filed by the petitioner assailing the impugned order dated 27.07.2016 passed by the Sessions Judge, Kokrajhar in Criminal Revision Petition No. 1/2015, whereby the petitioner was directed to pay monthly maintenance of Rs. 4,000/- to the respondent and arrear payment to be deposited within a period of six months from the date of filing of the maintenance petition. Upon appreciating the evidence, all the three issues were decided in favour of the respondent.

3. The brief facts in respect of the present petitioner is that the petitioner was married to the respondent No. 1 while she was about 19 years age as per the Islamic Religious Rites and Rituals and by execution of a registered marriage agreement (Kabinnama). Out of the marriage, a male child was born, who is about 16 years old on the date of the filing of the petition. In the year 2013, dispute arose between the petitioner and the respondent in respect of the petitioner’s only son being brought back from his school in Hojai to the native village of the petitioner without consent of the petitioner which led to confrontation with the respondent and eventually there was a divorce between the petitioner and the respondent. In order to resolve the dispute between the parties, an agreement for Talak was executed between the petitioner and the respondent in the presence of respected members of the society and the present petitioner paid deferred dower amount and the maintenance for the period of iddat. It is the pleaded case of the petitioner that the respondent, thereafter, voluntarily left the house of the petitioner in the presence of the witnesses out of mutual trust and goodwill. Thereafter, the respondent filed a petition for maintenance being C.R. Case No. 89/2013 claiming maintenance of Rs. 10,000/- per month and a cash amount of Rs. 1,00,000/-. The petitioner contested the case by filing his written statements. The Judicial Magistrate, First Class, Kokrajhar framed the following issues:

st (a) Whether the 1 party is unable to maintain herself?

st (b) Whether the second party refused or neglected to maintain 1 party in spite of having sufficient means?

st (c) Whether the 1 party is entitled to get maintenance allowance from second party?

Thereafter, by Judgment dated 05.01.2015, the Judicial Magistrate, First Class, Kokrajhar held that the respondent and her adopted daughter are not entitled to any maintenance. However, his son is entitled to maintenance and accordingly, petitioner was directed to pay Rs. 2,000/- as maintenance. Being aggrieved the respondent preferred a revision petition before the Sessions Judge, Kokrajhar. The Sessions Judge, Kokarjhar vide the impugned Judgment dated 27.07.2016 was allowed the revision petition directing the petitioner to pay monthly maintenance of Rs. 4,000/- from the date of the filing the petition before the Court below and the arrear sum to be deposited within a period of six months. Being aggrieved, the present revision petition has been filed.

4. We have heard the learned counsels for the parties as well as the learned Addl. Public Prosecutor for the State of Assam.

5. The issue urged before this Court is whether in view of the agreement for Talak duly executed between the parties, whether the Session Judge, Kokrajhar st was correct in reversing the Judgment of the Judicial Magistrate, 1 Class, Kokrajhar by awarding the maintenance to the respondent.

6. The Apex Court in the case of Fuzlunbi Vs. K. Khader Vali and Anr, reported in (1980) 4 SCC 125 explained the nature of mahr (dower) is distinguishable from the maintenance allowance to be paid by husband on a divorce.

7. In Modh. Ahmed Khan Vs. Shah Bano Begum and Ors. reported in (1985) 2 S