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2011 DIGILAW 988 (GAU)

Abhoy Chandra Kakati v. Indira Kakati

2011-12-15

UJJAL BHUYAN

body2011
Ujjal Bhuyan, J.;- The respondent wife filed a petition un­der Section 125 CrPC in the Court of the learned Principal Judge, Family Court, Kamrup, at Guwahati ("Family Court" here­inafter) seeking maintenance for herself and her three children. The respondent stated that she was married to the petitioner in the year 1985 and out of the wedldck three children were born. However, since the year 2003, the petitioner used to ctiy away from the house and refused to nuiatain them. From 2006, the petitioner stated to live seperately and from October, 2008, he totally stopped payment of any amount to the family. It is un­der such circumstances that the respondent filed the aforesaid petition seeking mainte­nance of Rs. 10,000/- per month. The said proceeding was registered as FC Case No. (Crl.) 534/2008. 2. The petitioner who was arrayed as the opposite party contested the proceeding by filing written statement. Though he admitted the marriage with the respondent and the birth of the three children, he denied the other allegation. In his written statement, he stated that he is an employee of the Food Corpo­ration of India (hereafter referred to as "FCI") and was posted at Diphu, Karbi Anglong, during the period 2003-2005 for which he could not devote sufficient time to his family. He stated that the respondent earned rental income and that he paid all the educational expenses of the children. He fur­ther stated that he had taken a bank loan for construction of his house and has to pay a substantial amount every month towrds the repayment of the loan. 3. Efforts were made by the Family Court for conciliation but such efforts proved fu­tile. Thereafter, the case was taken up for consideration. By the judgment and order dated 05.05.2010, the Family Court partly allowed the petition of the respondent by directing the husband (petitioner herein) to provide maintenance® Rs. 9,000/- (Rs. 7000/- to the wife and Rs. 2000/- to the daughter) from the date of the said order. It is this order which is under challenge in the present proceeding. 4. I have heard Mr. D.K. Saikia, learned counsel for the petitioner and Mr. P. Talukdar, learned counsel for the opposite party. 5. Mr. Saikia submits that though initially he received notice and submitted written statement but subsequently he did not re­ceive any further notice the Family Court for which he could not adduce evidence. 4. I have heard Mr. D.K. Saikia, learned counsel for the petitioner and Mr. P. Talukdar, learned counsel for the opposite party. 5. Mr. Saikia submits that though initially he received notice and submitted written statement but subsequently he did not re­ceive any further notice the Family Court for which he could not adduce evidence. He submits that the petitioner is working in the ,FCI, Diphu Branch in clerical grade and out of his salary he has to make provision for repayment of the loan amount which he had taken for construction of the house at Guwahati. He further submits that the re­spondent and the children are staying in the same house which he had constructed wherein he also stays when he visits Guwahati. He submits that the quantum fixed by the Family Court is excessive and re­quires consideration by this Court. 6. On the other hand, Mr. Talukdar sub­mits that notice was duly served upon the petitioner pursuant to which he had appeared and filed the written statement but despite participating by filing written statement and having knowledge about the pendency of the aforesaid proceeding, the petitioner did not make any attempt to subsequently appear therein and to adduce evidence. He further submits that the maintenance amount directed to be paid by the Family Court, which is a reasonable amount, is not being paid by the petitioner. 7. The rival submissions made at the Bar have received the due consideration of this Court. From a perusal of the impugned judg­ment, it is seen that the petitioner had con­tested the case by filing written statment but he remainded absent thereafter. Having re­ceived notice from the Court it was the duty of the petitioner to participate in the proceed­ing which in fact he did by filing written state­ment but thereafter he close to remain ab­sent. The resondent examined four witnesses in support of her case but on the other hand the petitioner remained absent when it was his turn to adduce evidence. The reason given by the petitioner for his subsequent non-ap­pearance that he did not receive further no­tice from the Family Court for appearance is not acceptable because he had already ap­peared and filed his written statement. The reason given by the petitioner for his subsequent non-ap­pearance that he did not receive further no­tice from the Family Court for appearance is not acceptable because he had already ap­peared and filed his written statement. His claim that he was not aware of the subse­quent dates is belied by his own presence before the Family Court on the day of the judgment and this is what the Family Court had to say on his conduct: "However, on the day of judgment, he ap­peared and rebuked the petitioner in high vol­ume and created the scene in the Court that he cannot provide maintenance to his wife and went away." 8. The factum of marraige between the parties and the birth of children were admit­ted facts. After examining the evidence adduced including the evidence adduced by the children, the Family Court came to the con­clusion that the petitioner did not discharge his martial obligation and did not provide for any maintenance to his family members. The respondent in her evidence stated that she and her children received rental income amounting to only Rs. 2,000/- which was not adequate. As noticed above, the peti­tioner did not adduce any evidence and failed to rebut the case of the respondent or to substantiate his plea that he maintained his family in a proper manner. The Family Court noticed that two of the children who have attained majority had given evidence against the petitioner and his conduct. After consid­ering all the materials on record, the Family Court came to the conclusion that the re­spondent was unable to maintain herself and the children and the petitioner had neglected and failed to provide maintenance to the re­spondent. Holding that the respondent is entitled to get maintenance from the peti­tioner, the Family Court directed the peti­tioner to provide a sum of Rs. 9,000/- per month to the respondent and her daughter as a maintenance allowance. While issuing the aforeaid direction, the Family Court into account the salary received by the petitioner and also the deduction made there from on account of the loan repayment. The Family Court also took into account the requirement of the unmarried daughter who is fully de­pendant upon the respondent and the status and social background of the respondent. 9. Proceedings under Section 125 CrPC are of the summary nature as held by the Apex Court in the case of Dwarika Prasad Satpathy Vs. The Family Court also took into account the requirement of the unmarried daughter who is fully de­pendant upon the respondent and the status and social background of the respondent. 9. Proceedings under Section 125 CrPC are of the summary nature as held by the Apex Court in the case of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit, AIR 1999 SC. 3348 . The order passed in an ap­plication under Section 125 CrPC dods not finally determine the rights and obligations of the parties. The said provision is meant to achieve a social purpose and has been en­acted with a view to provide summary relief to a wife, children and parents. As observed by the ApfeJc Court in Capt. Retriesh Chander Katishal Vs. Veena Kaushal, AIR 1978 SC1807, this provision is a measure of social justice for women and children. In a proceeding for maintenance under Section 125 CfPC.; the learned Magistrate is ex­pected to pass orders on prima facie satis­faction. It is obvious that such decision will be tentative and therefore in any such pro­ceeding some amount of guesswork is in­evitable, of course it should not be unreso-nable or fanciful. The Apex Court in Rajathi Vs. C.Gamsan, AIR 1999 SC 2374 held that in case under Section 125 CrPC, the Trail Court is to take a prima facie view of the matter and it is not necessary for the Court to go into the matrimonial dispute be­tween the parties in detail. In such cases, it is not necessary for this Court to examine the whole evidence threadbare to exercise jurisdiction under Section 482 CrPC. 10. In the case in hand, the Family Court after perusal of the entire materials on record arrived at the finding as noticed above, hi the considered opinion of this Court, there is no irregularity or infirmity in the findings recorded by the Family Court. I am therefore of the view that the present is not a case where ei­ther the revisional power or the inherent power of this Court should be invoked. In view of the discussions above, this revision fails and is accordingly disniissed. However, there will be no order as to cost.'