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2014 DIGILAW 140 (TRI)

Putul Khatun v. Md. Badal Miah @ Tukku Miah

2014-04-04

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- This revisional application filed under Section 19(4) of the Family Courts Act, 1984 read with Sections397 and 401 of the Code of Criminal Procedure is directed against the Judgment & Order dated 13.05.2009 passed by learned Judge, Family Court, Agartala, West Tripura in Case No. Misc. 197 of 2008. By the impugned Judgment & Order, learned Judge, Family Court, rejected the prayer of maintenance of the petitioner filed under Section 125 of Cr.P.C. and hence, the petitioner preferred the present revisional application. Heard learned counsel Ms. P. Dhar for the petitioner. The respondent has chosen to remain absent. 2. The petitioner preferred an application under Section 125 of the Cr.P.C. before the learned Judge, Family Court, Agartala against her husband, the opposite party Md. Badal Miah @ Tukku Miah praying for granting maintenance @ Rs. 2,000/- to her and Rs. 1,000/- to her minor daughter per month. It is alleged by the petitioner that her marriage with the opposite party was solemnized on 26.07.2004 as per Muslim customary rites and ceremonies and thereafter, she lived with the opposite party-respondent in the matrimonial home as husband and wife. From the very inception of the matrimonial life, the respondent and other members of the matrimonial home started inhuman behaviour with the petitioner and same continued even after born of the female child on 01.07.2005. The respondent demanded Rs. 25,000/-, but because of the poverty of her parents, the petitioner could not afford the amount and as a result, she was subjected to severe torture in the matrimonial home by the respondent-husband. She was beaten out of the matrimonial home on 2/3 occasions, but subsequently, on negotiation and village meeting, she was brought back. On 01.07.2007 to see her seriously ailing brother, she went to her parental home, but in the mean time, the respondent reported the absence of the petitioner to the Women’s Commission and she received notice from the commission and thereafter, appeared before the Commission and after counseling, she went back to the matrimonial home and again started residing with the respondent as husband and wife. In the mean time, she could learn that her husband married again another Jahara Khatun, D/O. Mana Miah of Jogendranagar and when she objected to such second marriage, she was mercilessly beaten and thrown out of the matrimonial home. In the mean time, she could learn that her husband married again another Jahara Khatun, D/O. Mana Miah of Jogendranagar and when she objected to such second marriage, she was mercilessly beaten and thrown out of the matrimonial home. She reported the incident to the Women’s Commission and on the advice of the Commission, she took shelter of the Court and filed the petition under Section 125 of Cr.P.C. She has stated that she has no source of income and her husband has a good earning of Rs. 4,500/- Rs. 5,000/- per month working as a painter and she claimed maintenance @ Rs. 2,000/- per month for herself and Rs. 1,000/- per month for her daughter and prayed before the Court to direct the respondent-husband to pay her the maintenance. 3. The respondent-husband contested the case by filing written statement denying the allegation made in the petition and inter alia stated that the petitioner (wife) was intolerant and was all along disinterested to stay in the matrimonial home. She used to leave the matrimonial house frequently without any permission or information of the respondent and other members of the matrimonial home. She always used to help her father from the purse of her husband without permission and when it was objected, she got furious and created chaos in the family. There were several meetings held in the village and the respondent-husband always tried to live together with the petitioner-wife, but she was not at all interested. The respondent denied the allegation that he has married again Jahara Khatun and further stated that the petitioner was maintaining elicit relation with one Md. Korban Miah of Addi Colony and therefore, she was not interested to stay in the matrimonial home. It is stated that the respondent with his meager income has to maintain his old mother and two sisters working as daily labour and he has no means to maintain the petitioner separately if she do not live with the respondent. 4. In course of trial, the petitioner examined four witnesses and the respondent-husband also examined four witnesses. Considering the evidence of both side, learned Judge, Family Court allowed maintenance @ Rs. 1,000/- to the minor daughter of the petitioner, but refused the prayer of the petitioner with the following observation:- ..... 4. In course of trial, the petitioner examined four witnesses and the respondent-husband also examined four witnesses. Considering the evidence of both side, learned Judge, Family Court allowed maintenance @ Rs. 1,000/- to the minor daughter of the petitioner, but refused the prayer of the petitioner with the following observation:- ..... From the evidence on record it is found that the opposite party had also approached the Tripura Commission for Women to get back his wife and after mitigation made by the Tripura Commission for Women, the opposite party had managed to shift his wife to his house, but after some days when there was dispute and quarrel between the husband and wife, the wife used to go back to the house of her father and this was the root cause of the dispute and so I am of the view that the allegation levelled against the husband made by the wife for torture in demand of dowry or allegation of remarriage of her husband were totally false and so I am of the view that the petitioner No. 1 is the only person who is responsible for the present fate of the family and at the time of hearing, when the petitioner No. 1 was asked whether she is interested to go back to the house of her husband, she replied that she was not interested to go back to the house of the opposite party, but she would live together with the husband if the husband comes to a rented house nearby the house of her father and so I am of the view that the husband is not responsible for the present situation and accordingly, the petitioner No. 1 should not be given any maintenance and if the maintenance is given to the petitioner No. 1 in this case, she would be further encouraged and she will not take any initiative to start a new life for leading peaceful conjugal life with the husband for the welfare of the only daughter and so the issue is decided against the petitioner No. 1, but in favour of the opposite party. 5. It is submitted by Ms. Dhar, learned counsel that the learned Judge, Family Court failed to construe the evidence and materials on record and arrived at a perverse finding. 5. It is submitted by Ms. Dhar, learned counsel that the learned Judge, Family Court failed to construe the evidence and materials on record and arrived at a perverse finding. She has contended that maintenance is not a luxury, but a means of livelihood, who cannot afford such means of her own. No wife seizes her relationship with her husband unless there are reasons for doing so. The respondent driven out the petitioner with the minor daughter from the matrimonial home and the petitioner having no source of her livelihood taken shelter in her parental home. While she alleged torture and maltreatment and while her allegation that the respondent married again and her husband made allegation that she lives in adultery, it was enough for the wife-petitioner to live apart from the husband and while all these factors have been established, the Family Court would grant maintenance to the petitioner. 6. On perusal of the L.C. records, I find that learned Judge, Family Court recorded the evidence of witnesses of both side only in a few lines and there was no cross-examination by the other side. According to law, the Family Court is not required to record the evidence in details, but material fact what is alleged by both side should be brought on record and reasonable opportunity should be afforded to the parties. In such cases, where the parties are poor, illiterate, from village, the Family Court would afford legal aid to the extent it is necessary for fair ends of justice. No opportunity of cross-examination was afforded to the parties in the case. Be that as it may, a careful reading of the petition filed by the petitioner, the written statement of the opposite party as well as the substance of the evidence recorded by the learned Judge, Family Court clearly reveals that a Mohammedan marriage was solemnized between the petitioner and the respondents. They lived and cohabited as husband and wife and a girl child was born to them out of their wedlock. The petitioner alleged that she was tortured by the respondent and other members of the matrimonial home and was driven out of the matrimonial home on different occasion. They lived and cohabited as husband and wife and a girl child was born to them out of their wedlock. The petitioner alleged that she was tortured by the respondent and other members of the matrimonial home and was driven out of the matrimonial home on different occasion. It is also brought on record that the dispute between the husband and wife was taken to the Women Commission and the Commission at the first instance after counseling put them together and thereafter, they lived and cohabited again. The petitioner alleged that the respondent married again whereas the respondent alleged that the petitioner maintaining an elicit relation with another Md. Korban Miah. The matrimonial life between the petitioner and the respondent is found to be not congenial and while the husband made a vague allegation that the wife maintains an elicit relation with another man, it was quite natural that on that issue, the atmosphere of matrimonial home was not fit for living together as husband and wife, at least, for the time being. Indisputably, the petitioner with her minor daughter living apart from the respondent-husband and she has no independent source of income. The respondent is working as a daily labour and according to the petitioner, he is earning Rs. 4,500/- Rs. 5,000/- per month. 7. The purpose of incorporating the provisions in Chapter IX of the Criminal Procedure Code regarding maintenance to wife (s), children and parents is to prevent vagrancy and to ensure maintenance for survival of such wife, children or parents at the earliest avoiding procedural hazard. In the case of Bishnupriya Sutradhar vs. Nipendra Sutradhar reported in 2012 (2) GLT 299, a judgment delivered by the single Bench of the Gauhati High Court (judgment by myself, S.C. Das, J.), the 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. 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 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, the Court has 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. 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. 8. 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. 8. In the present case, I find sufficient material on record for the petitioner to live apart from the matrimonial home i.e. from the association of the respondent. They may remove their dispute and difference and live together again if their good conscience and the feeling of one for the other restore. For the time being, while the petitioner is living apart from the husband and the matrimonial life got bitter, at least not congenial for living together, the Family Court would grant maintenance to the petitioner. In my considered opinion, the learned Family Judge arrived at a wrong finding and illegally rejected the prayer of maintenance. The petition, therefore, deserves consideration and accordingly, it is allowed. 9. The respondent-husband is directed to pay maintenance @ Rs. 1,500/- (Rupees One thousand five hundred) per month to the petitioner in addition to Rs. 1,000/- (Rupees One thousand) to their daughter as already directed by the learned Judge, Family Court. The respondent is to pay Rs. 2,500/- (Rupees Two thousand five hundred) per month as maintenance to the petitioner and her daughter in total and the payment be made in the said manner as directed by learned Judge, Family Court. 10. With the above observation and direction, the revisional application stands disposed of. Send back the L.C. records along with a copy of this Judgment.