Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 41 (GAU)

Rana Bahadur Singha v. Sandhya Singha

2007-01-12

H.N.SARMA

body2007
JUDGMENT H.N. Sarma, J. 1. Challenging the legality and validity of the judgment and order dated 29.4.2006 passed by the learned Principal Judge, Family Court, West Tripura, Agartala, in Case No. Miscellaneous 30/2006 awarding maintenance allowance in favour of the respondent-wife to be paid by the petitioner-husband at the rate of Rs. 1,500.00 per month, the present revision petition has been filed by the petitioner-husband. 2. I have heard Mr. Somik Deb, learned Counsel for the petitioner and Mr. N. Mazumdar, learned Counsel for the respondent. 3. The respondent-wife having filed the Criminal Misc. Application No. 334/2006 praying for directing the petitioner-husband to continue payment of maintenance allowance at the rate of 1,500.00 per month by vacating the earlier interim order passed by the Court on 23.6.2006 in Criminal Misc. Application No. 183/2006 in which only Rs. 700.00 was directed to be paid by the petitioner-husband as maintenance allowance to the respondent-wife, the matter came up for hearing of the said Criminal Misc. Application No. 334/2006. While hearing the aforesaid Criminal Misc. Application No. 334/ 2006, this revision petition itself was also taken up for hearing on merit. 4. The petitioner and the respondent are husband and wife. Their marriage was solemnized in the year 1987 and out of their wedlock one son, namely Bikram Singha and a daughter, namely Miss Rakhi Singha were born. After living peacefully for a period of five years, the petitioner started misbehaving the respondent for not bringing rnoney from her parents' house. The petitioner even applied force upon the respondent to bring cash and kind from her father. The father of the respondent also constructed a house of GCI sheet roofing with bamboo fencing on demand of the petitioner for him and also gave him other articles. The father of the petitioner has also sold his paddy land for meeting the demand of the petitioner. The petitioner demanded more money and articles from the father of the respondent and for not having able to meet his demand, the respondent was severely tortured and ultimately drove her out of the matrimonial home in the month of December, 2004. As a result, the respondent is now taking shelter in her parental house. Various persuasions made by the family members of the respondent including the local people having failed to evoke any positive response from the petitioner, the respondent has to stay in her parents' house. As a result, the respondent is now taking shelter in her parental house. Various persuasions made by the family members of the respondent including the local people having failed to evoke any positive response from the petitioner, the respondent has to stay in her parents' house. Both the son and the daughter of the respondent who were aged about 16 and 13 years, respectively, are staying with the petitioner. The petitioner also assaulted the respondent heavily being intoxicated on many occasions. The respondent having been driven out from the matrimonial home by the petitioner and having not paid any maintenance allowance, the respondent instituted a case under Section 125, Cr.P.C., praying for maintenance allowance from her husband before the learned Family Court, which was registered as Case No. Miscellaneous 30/2006. In the said application, apart from narrating facts relating to demand of money and articles, assault, etc., it is also stated that the petitioner is serving as Assistant Teacher in the Golaghat High School (Primary Section) drawing salary of Rs. 6,500.00 per month and that apart, the petitioner has got other income from 2 kanis of paddy land and 1 ½ kanis of homestead land with semi pucca construction with GCI sheet roofing. 5. Notice of the proceeding having been served upon the petitioner by the learned Family Court, he appeared and submitted his written statements denying the allegations made against him. During the course of trial, the respondent-wife examined herself as PW-1 and two other witnesses on her behalf who were duly cross examined by the petitioner. Similarly, the petitioner examined himself as DW-1. Although in the aforesaid proceeding the petitioner submitted affidavit evidence of his son, namely Sri Bikram Singha and the daughter, namely Miss Rakhi Singha, they were not produced for cross-examination and consequently their affidavits cannot be acted upon for the purpose of decision of the dispute. In her evidence, as PW-1, the respondent categorically deposed that her husband has driven her out of the matrimonial home and hence she has taken shelter in her parents' house; and that her husband is a school teacher and has been earning around Rs. 7,000.00 per month and that she is a house wife having no source of income. She has also stated that her husband has not paid any maintenance allowance for her livelihood and accordingly, she has prayed for maintenance allowance at the rate of Rs. 7,000.00 per month and that she is a house wife having no source of income. She has also stated that her husband has not paid any maintenance allowance for her livelihood and accordingly, she has prayed for maintenance allowance at the rate of Rs. 2,000.00 per month. It is also stated that at present her husband has been residing with his second wife. In cross-examination, no material question affecting the veracity of the statements of PW-1 was asked. In fact, except giving three suggestions, no other question was put to PW-1 and the allegations made in chief by the PW-1 has not been denied. Similarly, PW-2 who is the Secretary of the Tripura Commission for Women, stated about the filing of the complaint by the respondent with the Commission and the Commission asked both sides to appear before the Commission. The Commission also held discussions with both the parties where the parents of both sides were also present. It is also stated by PW-2 that the entire discussions was reduced to writing into paper and the parties to the case and other persons present there put their signatures thereon. Copy of which was also furnished to both the parties. PW-2 also stated that the petitioner did not pay any maintenance allowance to his wife. This witness was also not cross-examined on material facts nor any part of the material statement given by this witness was questioned during the cross-examination. 6. The petitioner who was examined himself as DW-1 deposed, inter alia, that he married the respondent in the year 1988 according to Hindu rites out of the wedlock one son and a daughter were born. He deposed that his wife developed illicit relation with another person and left his house with that person and he did not try to trace her out as it is shameful incident and, therefore, he did not contact her and did not give her any maintenance allowance. In his deposition, he stated that he is a teacher of a Primary School but he denied the fact that he married for the second time without the consent of his first wife. During the cross-examination, the statement regarding leaving the house of the petitioner by the respondent with another person is questioned. 7. In his deposition, he stated that he is a teacher of a Primary School but he denied the fact that he married for the second time without the consent of his first wife. During the cross-examination, the statement regarding leaving the house of the petitioner by the respondent with another person is questioned. 7. The learned Family Court upon evaluation of the evidence and materials on record and having found that the petitioner has been able to prove her case awarded maintenance allowance in her favour at the rate of Rs. 1,500.00 per month. It was also directed that the concerned Inspector of the School shall deduct the aforesaid amount from the salary bill of the petitioner with effect from 1.4.2006 and shall be sent to the respondent to her address in the first week of every English Calendar month directing the respondent to bear the expenses for money order. 8. Challenging the legality and the validity of the aforesaid judgment and order dated 29.4.2006, the present revision petition is filed. Mr. Somik Deb, learned Counsel for the petitioner has submitted that the learned Family Court has committed grave error in law by not giving any finding about the entitlement of the respondent to get maintenance allowance and the corresponding liability of the petitioner to pay the same and, as such, the impugned judgment and order is vitiated for non-application of mind. The learned Counsel also referring to the affidavit evidence of Shri Bikram Singha and Miss Rakhi Singha, the son and the daughter, respectively, of the petitioner, has strenuously submitted that even the son and the daughter of the respondent deposed against their mother stating, inter alia, that the allegations brought against their father (the petitioner) are absolutely false, fabricated and concocted. The learned Counsel has also referred to the statements made in the affidavit by her son that her mother has developed affinity towards one Shri Biswajit Banik and by using said affidavit as a trump card submitted that it is the learned Family Court which completely went wrong for not giving any weightage to the aforesaid affidavit evidence deposed by the son and the daughter of the parties. 9. Mr. 9. Mr. Mazumdar, however, strenuously opposed the aforesaid submission made by the learned Counsel for the petitioner and submits that the respondent has duly proved her case by way of clear and cogent evidence by examining herself as well as the Secretary of the Tripura Commission for Women and the affidavit evidence of the son and the daughter of the parties cannot be acted upon as they were not produced for cross-examination to test the veracity of their statements. It is submitted that the learned Family Court on the basis of materials available on records has not committed any error either on facts or in law in passing the impugned judgment and order. It is also submitted that by pointing out to the aforesaid two affidavit evidence that the petitioner was successful in obtaining an interim order staying a part of the order of maintenance of the learned Family Court which is liable to be vacated. 10. I have considered the rival submissions made by the learned Counsel for the parties. The connected records of the learned Family Court has also been perused. As stated above, the respondent has duly proved necessary ingredients as required under Section 125, Cr.P.C., for getting maintenance allowance by a wife from her husband. As against this, in fact, the petitioner has admitted the allegation of the respondent that he has not provided any maintenance allowance to his wife nor he has taken any care of her. He has also admitted that he is a teacher of a Primary School and has been receiving salary. The salary of Rs. 7,000.00 per month as deposed by his wife also not been denied. 11. During the course of hearing the learned Counsel for the petitioner was emphatic in his submission about the conduct and entitlement of the respondent not to get the maintenance allowance on the face of the affidavit sworn by her son and the daughter. Although on being asked by the Court, the learned Counsel submits that both these son and the daughter were cross-examined. In fact, the records disclosed otherwise. The said son and the daughter whose affidavits sought to be used against their mother are living with their father, the petitioner. They were never produced before the learned Family Court for cross examination and, in fact, before the learned Family Court only the petitioner deposed as DW-1. In fact, the records disclosed otherwise. The said son and the daughter whose affidavits sought to be used against their mother are living with their father, the petitioner. They were never produced before the learned Family Court for cross examination and, in fact, before the learned Family Court only the petitioner deposed as DW-1. The submissions male by the learned Counsel for the petitioner to that effect is not borne out of records and it is nothing but misleading one. On close scrutiny of the case I find that the petitioner even went to the extent of using his son and the daughter by filing affidavit through them. Both the son and the daughter having been under the care and protection of their father are admittedly under his influence and not only this, the said affidavit must have been prepared at the instance and advise of their father, namely the petitioner. The conduct of the petitioner in this respect is not at-all acceptable, inasmuch as, in order to get rid of his legal obligation to provide maintenance to his legally married wife, he tried to use, his son and the daughter to swear affidavit against their mother. I do not consider the said affidavit to be voluntary one and that is the reason for which they were not produced for cross-examination. Such an action of the petitioner cannot be approved of under the law. His conduct is reprehensible. 12. While passing the impugned order staying a part of the maintenance allowance as granted by the learned Family Court, certainly the said order was passed on being pointed out the aforesaid affidavits of the son and the daughter of the respondent and the petitioner to take the illegal benefit out of those two affidavits which are legally not in existence. 13. The learned Family Court on the basis of the materials available on record and on proper appreciation of the factual aspect of the case passed the impugned order. The power of revision of this Court against such an order is rather restrictive in the sense that the revisional Court do not re-appreciate or re-evaluate the evidence and materials on record unless grave perversity is shown. The petitioner has totally failed to show any such perversity or illegality in passing the impugned order. In fact, the impugned order is fully justified on the basis of facts proved in the case. 14. The petitioner has totally failed to show any such perversity or illegality in passing the impugned order. In fact, the impugned order is fully justified on the basis of facts proved in the case. 14. In view of the aforesaid discussions, I do not find any merit in this revision petition and hence the same is dismissed with costs of Rs. 5,000.00. Consequently, the Criminal Misc. Application No. 334/2006 stands allowed. 15. The aforesaid costs shall be deposited by the petitioner to the learned Family Court within a period of two months from today. If the petitioner fails to comply to pay the costs as awarded, the concerned Inspector of the School shall deduct the same from the salary of the petitioner in four equal installments and remit the same to the respondent-wife along with the maintenance allowance. Petition dismissed.