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2014 DIGILAW 217 (TRI)

Julana Khatun v. Malek Miah

2014-06-11

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Ms. N. Guha, learned Legal Aid counsel appearing for the petitioner as well as Mr. S. Ghosh, learned counsel, vice Mr. D.P. Ghosh, learned counsel for the respondent. 2. Being aggrieved by the judgment and order dated 09.11.2010 delivered in Case No. Miscellaneous 159/2009 by the Judge, Family Court, Agartala, West Tripura, this petition under Section 397 read with Section 401 of the Cr.P.C. has been filed for revising the impugned order by which the petitioner's prayer for maintenance from the respondent has been rejected. 3. Ms. N. Guha, learned Legal Aid counsel appearing for the petitioner has taken this court to the evidence so recorded by the Judge, Family Court. For the petitioner, five witnesses were examined, whereas to deny the claim of the petitioner, the respondent has examined as many as seven witnesses. Ms. Guha, learned counsel has submitted that on a close scrutiny of the oral testimonies of both the petitioner's witnesses as well as the respondent's witnesses it would be apparent that the petitioner was physically assaulted in the respondent's house and there was no conducive atmosphere to live in her matrimonial home with the respondent. Thus, the petitioner was compelled to leave the matrimonial home and live separately in her parents' house. She has further elaborated by saying that the respondent never made any attempt, to bring back the petitioner again to the matrimonial relation and also to provide her minimal maintenance for a decent sustenance. 4. From the other side, Mr. S. Ghosh, learned counsel has submitted that the petitioner is very adamant and she has tried umpteen times to harass the respondent, even by inflicting injuries on her person by shaving blade. The petitioner had left the house of the respondent voluntarily, deserting the matrimonial relation. Therefore, the petitioner has been rightly denied the maintenance allowance by the impugned order. 5. For appreciating the submissions of the learned counsel, this court has reappraised the evidence and, it is apparent from the record that the petitioner was subjected to assault at least on one occasion and it has been admitted even by the respondent that he was also unhappy with the petitioner, which reflects, the petitioner was not even having conducive atmosphere in the matrimonial home and she was compelled to leave the matrimonial home. When the petitioner had left the matrimonial home, the respondent did never take any initiative to bring her back or to provide her with the maintenance. The reasons for rejecting the prayer for maintenance as assigned by the Family Court is really surprising as the Judge, Family Court, Agartala, West Tripura, in the impugned judgment has observed that: It is very much clear that the opposite party is considered to be a good boy in the locality and they did not hear any demand made by him to the petitioner, but it is stated by the DWs that there was quarrel between the husband and wife and the petitioner used to create problem in the family and thereafter, she used to go to the house of her father. From the deposition deposed by DW. 5 it appears that one day the petitioner attempted to commit suicide and so her husband slapped her and thereafter, there was hue and cry. From the deposition deposed by DWs including DW. 5, DW. 6 and DW. 7 it appears that when there was cut injury on the hands of the petitioner, the father of the opposite party brought her elder brother, but without knowing anything, the elder brother of the petitioner suddenly assaulted the father of the opposite party, though it was the father of the opposite party who shifted the petitioner to the GB Hospital for treatment, but unfortunately he was again harassed by the mother of the petitioner in the hospital. 6. If this observation is juxtaposed with the testimony of DW. 1, it would be apparent that the Judge, Family Court, Agartala, West Tripura did not apply his judicial mind at all. For saying so, the entire testimony of DW. 1 is extracted hereunder: The statements given by the pet. and others are not true. After the marriage, I found that my wife was not interested to stay in my house and she used to abuse me by saying that I was not a fit husband since I could not procure whatever she desires. One day she tried to pour kerosene on her body threatening me to teach a good lesson and as and when there was dispute or quarrel, she used to go to the house of her father. One day she tried to pour kerosene on her body threatening me to teach a good lesson and as and when there was dispute or quarrel, she used to go to the house of her father. My wife used to tell me that it will be not difficult to change a new husband since she had another husband earlier. 7. What the other DWs have stated, all are divergent stories and not in corroboration with what DW. 1 has stated before the court below. Situated thus, this court is satisfied that the petitioner has made out a case for granting her the maintenance allowance. 8. Mr. Ghosh, learned counsel appearing for the respondent has correctly pointed out that the petitioner herself has stated that the respondent is a helper to the mason. Keeping that in mind, this Court tentatively determines the monthly income of the respondent at Rs.4,000 (rupees four thousand) per month. 9. Having regard to the monthly income, the respondent is directed to pay a sum of Rs.1,800 (rupees one thousand eight hundred) per month as the maintenance allowance to the petitioner by the 10th day of each calendar month w.e.f. 01.06.2014 and the said amount shall be remitted to the petitioner by Money Order within the date as stipulated. The Money Order charge shall be borne by the respondent. Since the petitioner is entitled to get the arrear of maintenance for the period when she was denied, this Court determines a lump-sum of Rs.8,000 (rupees eight thousand) as arrear maintenance, considering the economic status of the respondent. The respondent shall pay the said arrear maintenance in 16(sixteen) equal installments, meaning thereby, the respondent shall pay additionally Rs.500 (rupees five hundred) per month to the petitioner for the next 16(sixteen) months. 10. With this observation and direction, this petition stands allowed to the extent as indicated above. There shall be no order as to costs. 11. Since Ms. N. Guha, learned counsel has provided assistance in this case as the Legal Aid counsel, she is entitled to a sum of Rs.3,200 (rupees three thousand and two hundred) as fees, which shall be borne by the High Court Legal Services Authority. A copy of this order be furnished to Ms. N. Guha, learned counsel for making the same available to the competent authority for purpose of reimbursement of her fees as the Legal Aid counsel.