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2003 DIGILAW 533 (GAU)

Samimul Karim v. Sanjida Haque

2003-12-03

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. In this revision petition under Section 357/401 of the Code of Criminal Procedure read with Section 482 of the said Code, the petitioner has challenged the judgment and order dated 11.6.2001 passed by the learned Principal Judge, Family court in case No. F.C. (Crl) 40/2000 directing the petitioner to pay maintenance of Rs. 500 each to the respondent and her minor daughter with effect from 15.2.2000. 2. I have heard Mr. A.S. Choudhury, learned counsel for the petitioner as well as Mr. M.K. Choudhury, learned counsel for the respondent. 3. An application was filed before the learned court below under Section 125 Cr.P.C. by the respondent contending that she was the legally married wife of the petitioner, the marriage being solemnised on 22.12.1996 and that a female child was born on 13.1.1998. The respondent alleged that during her stay with the petitioner at Krishnai she was subjected to cruelty both physical and mental. On 16.11.1999 the respondent was compelled to leave the matrimonial home and she too shelter in her parent's house at Birubari, Guwahati. Her family members visited the house of the petitioner for amicable settlement, but the petitioner and his family members refused to co-operate. A criminal case was also filed by the respondent against the petitioner on the allegation that he had illegally kept all the valuable articles in his custody given by the father of the respondent at the time of marriage. The articles/properties thereafter were recovered. The respondent has contended that in view of the ill-treatment meted out to her and because of the suspicious nature of the petitioner it was not possible for her to live together as husband and wife. She contended that she was without any income and was unable to maintain herself as well as her minor daughter. On the other hand the petitioner was employed with huge income and inspite of sufficient means had neglected to maintain her and her daughter. 4. In reply, the petitioner while denying the allegations of cruelty contended in his written statement that the respondent had willfully left his house and has been living separately without any lawful justification and therefore she is not entitled to any maintenance. 5. In support of the respective stand of the parties, they adduced evidence and the learned court below, on a consideration of the materials on record passed the impugned judgment and order. 5. In support of the respective stand of the parties, they adduced evidence and the learned court below, on a consideration of the materials on record passed the impugned judgment and order. 6. It has been argued by Mr. A.S. Choudhury, learned counsel for the petitioner that on a consideration of the pleadings of the parties and the materials on record it is amply clear that the allegations of cruelty and ill treatment to the respondent have not been established and that she has been living separately without any lawful excuse and therefore she is not entitled to any maintenance. According to Mr. Choudhury, the differences between the parties as highlighted may at best be construed to be the normal wear and tear in a matrimonial home which in any view of the matter cannot justify separate living of the respondent. He further contended that the petitioner is still wining to take back the respondent and her daughter and that it is a fit case where this court would interfere with the impugned judgment and order. 7. Mr. M.K. Choudhury, learned counsel for the respondent on the other hand, has strongly contended that it would be apparent from the evidence of the respondent that she has been subjected to continuous mental and physical torture and that eventually the petitioner compelled the respondent to leave the matrimonial home. The petitioner is a man of suspicious nature and maintained a constant vigil on her movements and conduct so much so that it was humiliating and agonizing. It was therefore impossible for her to live together as husband and wife. Mr. Choudhury fairly submitted that in the meantime, the respondent is employed and is earning about Rs. 1,100 per month but with this meager amount it is very difficult on her part to maintain herself as well as her minor daughter. He therefore submitted that the impugned judgment and order does not call for any interference. 8. I have carefully considered the rival contentions of the parties and scrutinised their stand, as reflected in the pleadings. I have also gone through the evidence recorded by the learned court below. There appears to be conflicting versions with regard to the allegations of ill treatment by the petitioner on the respondent. 8. I have carefully considered the rival contentions of the parties and scrutinised their stand, as reflected in the pleadings. I have also gone through the evidence recorded by the learned court below. There appears to be conflicting versions with regard to the allegations of ill treatment by the petitioner on the respondent. The respondent, on oath, has categorically stated that the petitioner is a man of auspicious nature and used to maintain a constant surveillance on her movements and conduct, even while at home and abused her for no fault. She cited an instance, when at the dead of night the petitioner after returning home had focused the torch light on her and her daughter suspecting the presence of a male person in the room when there was none. The respondent being unwell was then sleeping with her daughter and the house maid. The petitioner charged that he had seen a boy leaving the room. He even rushed the neighborhoods to find the named boy lying in his house with fever. No cross examination was made on this aspect of the evidence. 9. In an Indian Society, it is very unlikely that a wife would bring such allegations against the husband if the same is false. On the other hand, if it is true it would be a mental cruelty of the wife if a husband suspects her chastity and for that purpose keeps a constant vigil on her and heap filthy abuses on her on such count falsely. No lady with self respect and dignity can be expected to continue in such a matrimonial home. On the basis of the pleadings of the parties and the evidence on record it, thus cannot be concluded that the respondent is living separately without any lawful excuse. 10. I have carefully examined the reasons recorded by the learned court below and I do not find any illegality or perversity vitiating the impugned judgment and order. 11. In the facts and circumstances of the case, I am of the considered opinion, that the petitioner has failed to make out a case for interference with the impugned judgment, and order. The revision petition is accordingly dismissed. Needless to say, all interim orders passed by this court earlier stand vacated. Revision petition dismissed