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2012 DIGILAW 82 (GAU)

Sampa Banik v. Gautam Chakraborty

2012-01-20

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This revisional application, under Section 397 r/w Section 401 of CrPC, is directed against the judgment & order, dated 18.08.201, passed by learned Judge, Family Court, Agartala, West Tripura, in Misc. Case No. 310/2009, under Section 125 of CrPC. 2. Learned Judge, Family Court, by the impugned order aforesaid, rejected the prayer of maintenance of the petitioner and hence this revisional application. 3. By order, dated 18.01.2012, both the parties were directed to remain present personally with their minor daughter and their Learned Counsels to have a reconciliation. Accordingly, the petitioner appeared with her Learned Counsel, Mrs. S Deb(Gupta) and the opposite party also appeared with his minor daughter and his Learned Counsel, Mr. N Majumder. I have heard them in person, jointly and separately and also heard the minor daughter, who is living with her father (opposite party). An effort was taken for having reconciliation but the parties made allegations and counter-allegations one against the other. However, the husband-opposite-party is ready to take back the petitioner and submitted that he filed a case for restitution of conjugal right but his wife is not ready. Petitioner submitted that she is apprehensive of torture, safety and security of her life, and, therefore, she is no longer willing to live with the opposite party. The minor daughter has stated that she is happy with her father and that she will be further happy, if her parents live together but unfortunately, the parents are not in a position to remove their difference and restore the matrimonial union. 4. Since the effort of reconciliation is failed, I have heard Learned Counsel of both sides and perused the impugned judgment, passed by the learned Judge, Family Court, Agartala. It is an undisputed fact that marriage between the petitioner and opposite party was solemnized, as per Hindu customary rites and ceremonies, on 18.10.1996, following love affairs between them and out of their wedlock, the daughter was born to them on 21.09.1997. In the petition seeking maintenance and in the objection filed by the opposite party, there were lot of allegations and counter-allegations. The learned Judge, Family Court while held that petitioner is the married wife of the opposite party and that the petitioner has got no independent source of income, refused the maintenance to the petitioner on the ground that petitioner maintaining illicit relation with another person. The learned Judge, Family Court while held that petitioner is the married wife of the opposite party and that the petitioner has got no independent source of income, refused the maintenance to the petitioner on the ground that petitioner maintaining illicit relation with another person. No doubt, the opposite-party-respondent raised such allegation, in the written objection and also adduced evidence that the petitioner used to leave the matrimonial home every now and then, according to her whims and desire and used to mix with other people and maintain illicit relation with PW.3 and that she was found moving on pillion of the motor bike of other people. Except suspicion there is no other cogent evidence that the petitioner is living in adultery or that she has other defecto-protector. It is also an undisputed fact that the petitioner is now living apart from the opposite party, in her parental home, with her widowed mother and she has no independent income. The opposite party has submitted that he maintains his daughter and rendering her proper education and he has no means to give separate maintenance to his wife. On record, I find that the opposite party has got income from his household properties and in the course of reconciliation he stated that he has been doing private tuition and maintain himself and his daughter. Definitely, the opposite party has got sufficient income to maintain himself and his daughter and he was supposed to maintain his wife had she was residing with him and, as such, the rejection of maintenance by the learned Judge, Family Court was not appropriate. 5. Proceeding under Chapter-IX of Cr.P.C is not punitive one. The object is not to punish a person for neglecting those whom he is bound to maintain. The Section prescribes speedy remedy by a summery procedure to enforce law 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. 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.LJ 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. 6. In the present case, while marriage is admitted and it is proved that the petitioner has got no independent source of income and that the petitioner is living apart from the opposite party because of dispute and difference, because of allegations and counter-allegations between them, under such circumstances, while the respondent husband is not paying maintenance to the wife-petitioner, the Court was supposed to pass an order granting maintenance. The grant of maintenance should be rejected only in the event it is proved that the petitioner is living in adultery or that she has voluntarily withdrawn herself from the association of the husband. Since in this case there are allegations and counter-allegations and husband also has raised allegation of illicit relation, which is not proved, the claim of maintenance should not have been rejected by the Family Court. The petitioner, therefore, could make out a case that her husband, the opposite party refused and or neglected to give her maintenance while she is living apart from the husband. 7. Let us now see what should be the reasonable amount of maintenance. According to law, the quantum of maintenance should not be a matter of luxury but what is necessary for survival of the petitioner and of course, while taking a decision the income of the opposite party and the life style with which the petitioner was accustomed, while in the husband's house, should be given proper consideration. The opposite party is not a Government employee. He has house property and preferably doing private tuition or something else, earn a reasonable amount to maintain his family. The opposite party is not a Government employee. He has house property and preferably doing private tuition or something else, earn a reasonable amount to maintain his family. Under such circumstances, considering all aspects, the opposite party is directed to make payment of compensation of Rs.1,500/- (Rupees one thousand five hundred) only per month to the petitioner with immediate effect. The amount of maintenance of each month should be paid within the first week of following month. The opposite party should make payment of maintenance w.e.f. January, 2012 payable in the month of February, 2012 and to continue thereafter. 8. The judgment & order, passed by the learned Judge, Family Court, West Tripura, Agartala, dated 18.08.2011 in Misc Case 310 of 2009, is accordingly, interfered and set aside. 9. With this observation, the revisional application stands disposed of. 10. Send back the L.C records along with a copy of this order.