Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 277 (GAU)

Musstt Anowara Khatun v. Monnaf Ali Ahmed

2001-09-14

D.BISWAS

body2001
This revision is directed against the judgment and order dated 30.11.99 passed / by the learned Sessions Judge, Barpeta in Criminal Motion No.9/1998 setting aside the judgment and order dated 3.2.98 passed by the learned Chief Judicial Magistrate, Barpeta m Case No.404m/1996 under section 125 CrPC. The learned Chief Judicial Magistrate had granted maintenance at the rate of Rs.300 per month to the petitioner-wife. 2.1 have heard Mr. AS Choudhury, learned counsel for the petitioner and Mr. SA Laskar, learned counsel for the opposite party. 3. The petitioner herein as first party filed an application under section 125 CrPC against her husband, the opposite party, for maintenance. The facts of the case in brief is that the petitioner was married to the opposite party according to Sariyat and Muslim rites and they stayed together for about three months as husband and wife. The opposite party started harassing the petitioner physically and mentally and eventually drove her out of the house. Having no alternative the petitioner took shelter in the residence of her parents. The opposite party never came to take her back nor paid any maintenance allowance. The petitioner had no income of her own and her poor parents are also not in a position to maintain her. 4. It would appear from the evidence on record as well as the pleadings that the factum of marriage is not denied. The marriage is still subsisting. The learned Chief Judicial Magistrate believed the evidence of the first party that she has been tortured and assaulted by the second party and was driven out of the house. The allegation of torture has also been evinced against other in-laws. PW 2, Md Newaj Ali Khan, an independent witness also supported the case of the first party. According to the opposite party who examined himself as DW 1, the allegation of torture is concocted and he had asked his wife on certain occasions during his absence to sleep with his mother for which the first party became aggrieved and left the house. The learned Chief Judicial Magistrate came to the conclusion that the conduct on the part of the opposite party to compel the petitioner to leave with his mother amounts to cruelty. The learned Chief Judicial Magistrate came to the conclusion that the conduct on the part of the opposite party to compel the petitioner to leave with his mother amounts to cruelty. Non-payment of maintenance under any circumstance and failure of the opposite party to take her back to his house are indications of cruelty and, hence, the learned Chief Judicial Magistrate granted maintenance at the rate of Rs.300 per month to the first party. 5. The learned Sessions Judge on revision reversed the aforesaid judgment on the ground that there is no corroborative evidence to the claim of torture by PW 1, the petitioner. According to the learned Sessions Judge the first party has " miserably failed to discharge her onus to establish that she was subjected to physical torture. Hence, the learned Sessions Judge opined that the first party left the house without any reasonable ground. 6.1 have perused the evidence on record. A young wife within three months of her marriage is not expected to leave the house of her husband without any cause. She has specifically stated that she was subjected to torture by her husband and other members of the family. Her allegation about torture hi the evidence led thereon remains undisturbed. Nothing could be elicited out of her during the course of cross examination to show that she had no reason to leave the house of her husband within three months of her marriage. Despite denial by the opposite party and DW 2, Alauddin, the evidence of the petitioner cannot be brushed aside. The fact remains that the petitioner was asked to sleep with the mother of their husband-opposite party on different occasions which must have created a feeling in her mind of alienation by her husband. That apart, her allegation that she was beaten by her husband cannot be ignored for want of corroboration as it is impossible for a newly married wife to have independent witness to prove the occurrence living in a hostile atmosphere. The fact that the husband never 8 tried to bring her back to his house also supplements the claim of the petitioner that she was subjected to torture both physically and mentally. In my considered opinion, the learned Chief Judicial Magistrate had rightly awarded Rs. 300 as maintenance after considering the financial status of the writ petitioner. 7. The fact that the husband never 8 tried to bring her back to his house also supplements the claim of the petitioner that she was subjected to torture both physically and mentally. In my considered opinion, the learned Chief Judicial Magistrate had rightly awarded Rs. 300 as maintenance after considering the financial status of the writ petitioner. 7. In the result, the revision petition is allowed and the impugned order dated 30.11.99 passed by the learned Sessions Judge is hereby set aside and that of the learned Chief Judicial Magistrate passed on 3.2.98 is hereby restored.