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2012 DIGILAW 1174 (GAU)

Rupa Paul v. Tapash Dhar

2012-10-03

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. This is a petition, filed under Section 397 of Cr. P.C. praying for revision of judgment & order, dated 21.06.2011, passed by learned Judge, Family Court, Agartala in connection with Misc. Case No. 350 of 2010 under Section 125 of Cr PC. The petition was filed, on 08.06.2012 and notice was directed against the respondent but the respondent has chosen to remain absent on receipt of notice. Office note, dated 04.09.2012, shows that the notice has been duly served on the respondent. Order dated 23.08.2012, passed by this Court, shows that an attempt shall be made to hear the entire matter, on the returnable date and hence the case is taken up for hearing. 2. At the very inception, learned counsel, Mr. Das Choudhury submits that mistakenly he has presented the petitions under Section 397 of Cr. P.C. but the petition ought to be one under Section 19(4) of the Family Court's act and for fair ends of justice, learned counsel prays for converting it to a petition under Section 19(1) of the Family Courts Act. 3. The order, challenged in the revisional application, has been passed by the learned Judge, Family Court, Agartala and hence to challenge the order one has to make the application under Section 19(4) of the Family Courts Act. The revisional application under Section 397 of Cr. P.C. would apply, had the order been passed by a Magistrate in exercise of power as vested under Criminal Procedure Code. Since the impugned order has been passed by the learned Judge, Family Court, and the petitioner preferred the revisional application before this Court directly, hence the prayer to convert it as an application under Section 19(4) of the Family Courts Act is allowed and the petition is accordingly converted. 4. Facts of the case, in short, may be stated thus:- The petitioner approached the Judge, Family Court, Agartala West Tripura by an application under Section 125 of Cr. P.C. praying for granting her maintenance @ Rs. 4. Facts of the case, in short, may be stated thus:- The petitioner approached the Judge, Family Court, Agartala West Tripura by an application under Section 125 of Cr. P.C. praying for granting her maintenance @ Rs. 5,000/- per month on the ground that since after her marriage with the respondent, she was subjected to cruelty in the matrimonial home and that she had to take shelter in her parents' house having no independent source of income and that the respondent husband having sufficient means neglected and/or refused to maintain the petitioner and therefore, she prayed before the learned Judge, Family Court to grant her maintenance and to direct the husband-opposite party to pay an adequate maintenance. Respondent contested the case stating inter alia that father of the petitioner was interested to keep the petitioner and the respondent in the parental house of the petitioner which was opposed by the respondent and therefore, the petitioner left the house of the respondent and living apart voluntarily, and as such, there was no reason at all to pay maintenance on his part to the petitioner and her application should be rejected. Both side adduced evidence before the learned Judge, Family Court and the learned Judge was pleased to refuse the prayer of maintenance made by the petitioner. 5. Heard learned counsel, Mr. D.K. Das Choudhury for the petitioner. 6. I have meticulously gone through the impugned judgment, passed by learned Judge, Family Court and also gone through the evidence and materials on record. Marriage between the petitioner and the respondent is not disputed. It is also not disputed that the petitioner (wife) has no independent source of income to maintain herself. Under such circumstances, it is the obligation and the boundant duty of the husband to maintain his wife. There is no case of the respondent that he has no sufficient means to maintain the petitioner (wife). It is an admitted fact that the petitioner (wife) is living apart from her husband and residing with her parents' in the parental home, The case of the petitioner is that she had been subjected to cruelty by her husband and therefore, she was compelled to take shelter in her parents' house. It is an admitted fact that the petitioner (wife) is living apart from her husband and residing with her parents' in the parental home, The case of the petitioner is that she had been subjected to cruelty by her husband and therefore, she was compelled to take shelter in her parents' house. The respondent (husband) disputed the fact stating that her father-in-law was insisting him and the petitioner to live in the parental house of the petitioner and on that issue, there was a dispute cropped up and the petitioner left the matrimonial home which shows that there was some disputes cropped up in the matrimonial home between the petitioner and the respondent, as a result of which the petitioner took shelter in her parental home and living apart from the respondent-husband. There is nothing in the evidence on record to hold that the petitioner (wife) voluntarily deserted the husband and withdrawn herself from the association of her husband. Under such circumstances, in my considered opinion, it is the duty of the husband to pay maintenance to his wife. 7. The proceedings under Chapter IX of the Cr. P.C. are not punitive in nature. The object is not to punish a person for neglect to maintain those whom he is bound to maintain. The Section provides only a speedy remedy by a summery procedure to enforce liability in order to avoid vagrancy. The provisions should be liberally construed as the primary object is to ensure social justice and to prevent vagrancy by compelling those who can support those who are unable to support themselves. The object of the provision has been well explained by the Apex Court in the case of Sabita Ben vs. State reported in (2005) 3 SCC 636 : AIR 2005 SC 1809 : AIR 2005 Cri. L.J. 2141 stating that Section 125 is enacted for social justice and specially to protect women and children as also old and infirm poor parents within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long they are unable, to maintain themselves. 8. The essence of Section 125 of Cr. PC is to grant maintenance and not refusal of the same. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long they are unable, to maintain themselves. 8. The essence of Section 125 of Cr. PC is to grant maintenance and not refusal of the same. The Courts exercising jurisdiction under Section 125 of Cr PC must keep in mind the very object of the provision and appreciate the facts and circumstances keeping in mind the legislative intents and purposes. The Court must take into consideration the broader aspect of the law and should not get swayed by the technicalities and the pits and holes here and there in the evidence and materials on record. It should appreciate the facts with broader possibility and should not reject the prayer of maintenance, as a matter like other criminal cases, taking into consideration the technicalities. Maintenance is not for luxury but for survival. After marriage it is the duty of the husband to provide shelter and maintenance to the wife. If he neglects, the wife is legally entitled to have it through the Court by petition under this Section. While the wife, children and infirm parents approaching the Court of law being helpless, for maintenance to survive, the Courts should not shut its eve and close the door which will definitely put the petitioner in duress, vagrancy and starvation. It is true that the maintenance should be allowed keeping in mind the ability of the respondent i.e. his income, and other attending factors. 9. Considering the facts and circumstances what transpires in the petition, written objection and the evidence on record, I think, the petitioner is entitled to get maintenance. Accordingly, taking into consideration the facts and circumstances and the evidence on record, the respondent-husband is directed to pay a maintenance to the petitioner-wife @ Rs. 2,000/- (Rupees two thousand) per month w.e.f. the date of the filing the petition i.e. 22.09.2010 and the maintenance of each month shall be paid within 7 (seven) days of the following month. The arrear maintenance shall be paid at a monthly installment of Rs. 500/- (Rupees five hundred). 10. Accordingly, the revisional application is allowed. The judgment & order, dated 21.06.2011, passed by learned Judge, Family Court in Case No. Miscellaneous 350 of 2010 is set aside. The respondent husband is directed to, make payment of maintenance to the petitioner-wife Rs. The arrear maintenance shall be paid at a monthly installment of Rs. 500/- (Rupees five hundred). 10. Accordingly, the revisional application is allowed. The judgment & order, dated 21.06.2011, passed by learned Judge, Family Court in Case No. Miscellaneous 350 of 2010 is set aside. The respondent husband is directed to, make payment of maintenance to the petitioner-wife Rs. 2000/- (Rupees two thousand) per month w.e.f. the date of the filing the petition i.e. 22.09.2010 and shall continued to pay the maintenance of each month within 7 (seven) days of the following month. The arrear maintenance shall be paid at a monthly installment of Rs. 500/- (Rupees five hundred) till the entire amount is paid. Send back the LC records along with this judgment. Application allowed.