ORDER

Date : 21-10-2022 Heard Mr. A. Ahmed, learned counsel for the petitioner and Mr. M.P.

Goswami, learned counsel for the State respondent no.1.

2. By filing this criminal petition under Section 482 read with Section 397 Cr.P.C. read with Article 227 of the Constitution of India, the petitioner, who is the estranged husband of the respondent no. 1, has prayed for setting aside the judgment dated 23.03.2022, passed by the learned Addl. Sessions Judge, Karimganj in Crl. Revision No. 32(1)/2018, thereby dismissing the appeal and affirming the judgment dated 16.02.2018, passed by the learned Chief Judicial Magistrate, Karimganj in Misc. Case No. 224/2015, thereby allowing monthly maintenance of Rs.1,500/- (Rupees One thousand five hundred only) per month under Section 125 Cr.P.C. to the respondent no. 1.

3. The learned counsel for the petitioner has referred to the grounds on which this petition is presented and it has been submitted that the petitioner was not in a capacity to pay any maintenance as he was totally dependent on his father for his own livelihood. It was submitted that the Court below had erroneously presumed that the petitioner was able to pay maintenance. By referring to the evidence-in-chief of DW-1, i.e. the father of the petitioner, it has been submitted that the petitioner was not mentally sound as such the learned Court below ought to have taken note of such evidence and ought to have directed an enquiry to be made to ascertain as to whether or not the petitioner was of unsound mind. Hence, it is submitted that the judgment was vitiated by non-consideration of the plea that the petitioner was of unsound mind. It is, therefore, submitted that this was a fit case to set aside the judgment of the learned Courts below and direct that the trial Court to first ascertain (a) whether the petitioner had paying capacity, and (b) whether or not the petitioner was of unsound mind.

4. It has also been submitted that the petitioner had lodged a complaint, which was sent to Badarpur P.S. for investigation and Badarpur P.S. Case was registered, and tried as G.R. Case No. 2055/2015 under section 498A of the IPC. The Court of Judicial Magistrate, First Class-II, Karimganj, by judgment dated 21.10.2016, had acquitted the petitioner and in para-7 of the said judgment, the Court had recorded a finding that due to mental illness of the petitioner, the respondent no. 1 went back to her father and is not willing to continue matrimonial relation with the petitioner. The observations of the learned trial Court in para-7 of the judgment of G.R. Case No. 2055/2015 is quoted below:-

“7. From the above evidences, I do not find any implicating statement against accused. Rather, the evidences indicate that due to mental illness of accused, the complainant went back to her father and is not willing to continue matrimonial relation with the accused.”

5. In support of his submissions, the learned counsel for the petitioner has referred to the case of Bolin Bora v. State of Assam, Crl. Appeal No. 205/2007, decided by this Court on 04.02.2013, and reported in MANU/GH/0043/ 2013.

6. Examined the materials available on the record. In this case, the respondent no. 1, by filing a case under Section 125 Cr.P.C., claimed maintenance. As indicated herein before, by judgment and order dated 16.02.2018 passed by the learned Chief Judicial Magistrate, Karimganj in Misc. Case No. 224/2015, the petitioner was ordered to pay maintenance of Rs.1,500/- per month to the respondent no. 1 from the date of the order.

7. The two points on which the learned counsel for the petitioner had deliberated are as follows, viz., (a) whether the petitioner had paying capacity, and (b) whether or not the petitioner was of unsound mind. No other point was urged by the learned counsel for the petitioner.

Whether or not the petitioner was of unsound mind:

8. It is seen that in the proceeding of Misc. Case No. 224/2015, the evidence-in-chief and cross-examination of the respondent no. 1