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2013 DIGILAW 44 (GAU)

Sajal Roy v. Anima Saha

2013-01-24

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. By this application, filed under Section 19(4) of the Family Courts Act, 1984, the petitioner challenged the judgment & order, dated 08.10.2012, passed by learned Judge-in-Charge, Family Court, Udaipur, South Tripura in Case No. Cr. Misc./FC/UDP/38/2012. Heard learned counsel, Mr. T. Datta Majumder for the petitioner and learned counsel, Mr. S. Majumder for the respondent. 2. The respondent, being the wife of petitioner, filed an application before the learned Judge, Family Court, Udaipur praying for granting her maintenance @ Rs. 5,000/- per month from her husband, the petitioner herein. She stated that she has no independent source of income and that her husband is working as a Teacher under the Government of Tripura and drawing a salary of Rs. 10,000/- per month and having such source of income her husband is not paying any maintenance to her. The petitioner, being the husband, contested the case denying the allegations made by respondent-wife and stated that the respondent-wife deserted him and refused to live with him and therefore, she is not entitled to get any maintenance. Learned Judge-In-Charge, Family Court, by impugned judgment & order, dated 08.10.2012, granted maintenance @ Rs. 3,000/- per month to the respondent-wife herein. Being aggrieved the present revisional application is filed contending that the wife since deserted the husband (petitioner) is not entitled to get maintenance and that the amount of maintenance is excessive and disproportionate to the income of the petitioner. 3. It is contented by learned counsel, Mr. Datta Majumder that the petitioner is a Teacher in 'Sharba Shiksha Mission' and drawing a monthly emolument of Rs. 8,500/- and he has his old and ailing parents, depending upon him and so, the amount of compensation, as awarded, is excessive and harsh. He has further contended that the respondent wife deserted the petitioner and several attempts were made by the petitioner to take her back but she refused. Since she voluntarily left the matrimonial home she is not entitled to get maintenance. 4. Learned counsel, Mr. Majumder, on the other hand, contended that the respondent-wife in her petition, filed under Section 125 of Cr.P.C. and in her deposition categorically stated that monthly salary of the petitioner is Rs. Since she voluntarily left the matrimonial home she is not entitled to get maintenance. 4. Learned counsel, Mr. Majumder, on the other hand, contended that the respondent-wife in her petition, filed under Section 125 of Cr.P.C. and in her deposition categorically stated that monthly salary of the petitioner is Rs. 10,000/- and such statement of the respondent-wife was neither denied in the written statement nor controverted in the deposition of the husband-petitioner and, therefore, taking into account the income of the petitioner, learned Judge-In-Charge, Family Court has rightly directed the payment of maintenance @ Rs. 3,000/- per month which should not be reduced. He further contended that the petitioner-husband always ill-treated the respondent-wife in the matrimonial home and thereby made the matrimonial life of the respondent miserable and ultimately, she was driven out from the matrimonial home which is evident from the material on record. Learned counsel also submitted that in the written statement of the respondent in Para 11 an allegation of adultery has been falsely made against the respondent-wife which shows the mental state of the petitioner-husband towards his wife. She has been consistently ill-treated by the husband in the matrimonial home. 5. A revisional Court is not required to re-appreciate the evidence on record, unless it is shown that findings of the Court below is perverse and that there is no supporting legal evidence on record to support the judgment/order. The Court is also not required to re-appreciate the evidence on record, on the points already decided by the trial Court unless the order suffers from illegality, impropriety or incorrectness and/or the proceeding is irregular. 6. The purpose of incorporating the provisions regarding maintenance of wives, children and parents in Chapter IX of the Criminal Procedure Code is to prevent vagrancy and to ensure maintenance to the deserving wives, children or parents at the earliest without having procedural hazard. In the case of Bishnupriya Sutradhar Vs. Nipendra Sutradhar reported in 2012 (2) GLT 299the object of the provision has been explained thus: 10. The object of the provision has been well explained by the Apex Court in the case of Sabita Ben Vs. In the case of Bishnupriya Sutradhar Vs. Nipendra Sutradhar reported in 2012 (2) GLT 299the object of the provision has been explained thus: 10. 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. The proceedings under Chapter IX of the Cr.P.C. are not punitive. 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. In Para 12 of the said judgment this Court further held thus: 12. The essence of Section 125 of Cr.P.C. is to grant maintenance and not refusal of the same. The Courts exercising jurisdiction under Section 125 of Cr.P.C. 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 from the Court by petition under this Section. 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 from the Court by petition under this Section. While the wife, children and infirmed parents approaching the Court of law being helpless, for maintenance to survive, the Courts should not shut its eye 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. 7. Keeping in mind the principles, as stated above, let us now examine the merit of the case on the point it has been challenged. It is an undisputed fact that the petitioner and respondent are the husband and wife and a Hindu Marriage was solemnized between them. It is also an undisputed fact that the respondent wife has no independent source of income and that the petitioner husband has been working as a Teacher under Sharba Shiksha Mission of Government of Tripura. Regarding income of the petitioner-husband, the respondent-wife in her application, filed under Section 125 of Cr.P.C. as well as in her deposition before the Family Court categorically stated that the petitioner-husband has been drawing his salary Rs. 10,000/- per month. The petitioner-husband neither denied the fact in his written statement nor adduced any evidence, documentary or oral, to controvert the statement of the respondent-wife. Learned Judge-In-Charge, Family Court, in Para 11 of the judgment assessed the monthly income of the petitioner-husband @ Rs. 7,500/- per month. There is neither any pleading nor any evidence in support of such assessment made by the learned Judge-In-Charge, Family Court. It is necessary to point out here that the Court should decide the case on the basis of the evidence and materials available on record and any finding made beyond the evidence and materials on record may be termed as a perverse finding. Since there is neither any pleading nor any evidence on record in support of the decision arrived at by the learned Judge-In-Charge, Family Court in assessing the monthly income of the petitioner @ Rs. 7,500/- per month, it is liable to be interfered with. Since there is neither any pleading nor any evidence on record in support of the decision arrived at by the learned Judge-In-Charge, Family Court in assessing the monthly income of the petitioner @ Rs. 7,500/- per month, it is liable to be interfered with. In view of the pleadings of the respondent, as made in her written statement, which is not denied, and her evidence that the husband-petitioner has a monthly income of Rs. 10,000/-, we have to decide the case holding that certainly the monthly income of the petitioner is Rs. 10,000/-. The respondent-wife alleged that she was subjected to cruelty in the matrimonial home by the petitioner-husband and that she was driven out from the matrimonial home. In her deposition also she stated the said fact. The petitioner-husband adduced no evidence to controvert the evidence of the respondent-wife regarding torture on her, rather the petitioner-husband made an allegation in the written statement that respondent-wife living in adultery whereas no evidence adduced in support thereof. It shows the mental state of the petitioner-husband towards his wife and under such circumstances, the decision of the learned Judge-In-Charge, Family Court in granting maintenance to the respondent-wife was justified. 8. Let us now decide what shall be the reasonable and just amount of maintenance payable to the petitioner taking into account the monthly income of the petitioner (husband). He has stated in his evidence that he has his parents who are maintained by him. Therefore, it is to be understood that out of the income of the petitioner he has to maintain himself, his parents and the wife-respondent. Since the petitioner is the earning member, he has to incur certain expenditure towards his to and fro and other pocket expenses. So, let us exclude one-third of the total amount, say Rs. 3,500/-, towards maintenance and other pocket expenses of the petitioner himself. In ordinary course, the parents are also legally entitled to get maintenance and the wife-respondent also equally entitled to a reasonable share of the income of her husband as maintenance. But since the parents are residing with the petitioner in the same mess they may be given a lesser amount and the respondent-wife may be given a bit higher share towards her maintenance and considering that aspect, I think, an amount of Rs. But since the parents are residing with the petitioner in the same mess they may be given a lesser amount and the respondent-wife may be given a bit higher share towards her maintenance and considering that aspect, I think, an amount of Rs. 2,500/- per month may be appropriate amount for maintenance of the wife-respondent, to be given by the petitioner-husband. 9. It has been pointed out by the learned counsel of both side during argument, that no effort was taken by the Family Court for a settlement of the dispute between the husband and wife. The Family Courts Act, 1984, has been enacted with a special objective to provide special procedure to matters concerning the family. It obligatory on the part of the Family Court to take endeavour, in the first instance, to effect a reconciliation or a settlement between the parties to a family dispute and during that stage the proceedings will be informal and rigid rules of procedures shall not apply. Section 9 of the Family Courts Act, 1984 prescribes thus: 9. Duty of Family Court to make efforts for settlement- (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it think fit to enable attempts to be made to effect such a settlement. (3) The power conferred by the sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings. In view of the above provision, a Family Court is bound to take an effort for settlement of the dispute between the parties. Unfortunately, in the present case, no such effort was taken. In view of the above provision, a Family Court is bound to take an effort for settlement of the dispute between the parties. Unfortunately, in the present case, no such effort was taken. Order XXXIIA of the Code of Civil Procedure, 1908, in Rule 3, it has been prescribed that it is the duty of the Court to make efforts for settlement of matrimonial disputes. The provisions reads thus: Duty of Court to make efforts for settlement- (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject matter of the suit. (2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings. Section 23(2) of the Hindu Marriage Act, 1955 also prescribes that endeavour should be taken for reconciliation. A conjoint reading of the provisions, indicated above, makes it abundantly clear that the efforts in all such cases should be taken by the Court to have a settlement and where the proceeding is before the Family Court such an attempt is a must before passing a final order. Though no attempt was taken for a reconciliation in the Family Court, an attempt has been made by this Court for the settlement of dispute and both the husband and wife personally appeared with their learned counsel and were heard in the Chamber but it was found that they are not in a position to arrive at a settlement and to live together for the time being and hence the matter has been decided on merit. 10. In view of the discussions, made above, the revisional application is partly allowed in respect of quantum of monthly maintenance to be given to the respondent-wife by the petitioner-husband. Henceforth w.e.f. the month of January, 2013 the petitioner-husband shall pay Rs. 10. In view of the discussions, made above, the revisional application is partly allowed in respect of quantum of monthly maintenance to be given to the respondent-wife by the petitioner-husband. Henceforth w.e.f. the month of January, 2013 the petitioner-husband shall pay Rs. 2,500/- (Rupees two thousand and five hundred) per month, as maintenance to the respondent-wife and the payment should be made within first week of every following month without fail until otherwise directed by a Court of competent jurisdiction. 11. The revisional application is accordingly disposed of. Send back the L.C. records along with a copy of this judgment.