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Tripura High Court · body

2014 DIGILAW 400 (TRI)

Paramesh Debbarma v. Bulti Debbarma

2014-11-27

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application under Section 19(4) of the Family Courts Act, 1984 is directed against order dated 17.05.2014, passed by learned Judge, Family Court, Agartala, West Tripura, in case No. Misc. 36/2013, under Section 125 of Cr.P.C. By the impugned order learned Judge, Family Court granted maintenance @ Rs. 2500/- per month to the respondent-wife. 2. Felt aggrieved, the petitioner-husband preferred the revisional application. 3. Heard learned counsel Ms. R. Guha for the petitioner-husband and learned counsel Mr. H.K. Bhowmik for the respondent-wife. 4. Undisputed facts are that marriage between the petitioner and the respondent was solemnized as per Hindu customary rites and ceremonies on 09.07.2008 and thereafter they lived and cohabited as husband and wife in the matrimonial home. Relation between the husband and wife was initially sweet but later on it was strained and both side made allegations against each other. On the basis of an FIR, lodged by the respondent-wife, Agartala Women P.S. Case No. 177/09, under Section 498(A) of IPC was registered against the petitioner and his mother and sister and the case was charge-sheeted. It is also an admitted fact that because of strain relation, the respondent left the matrimonial home and was living in the house of her parents. It is alleged by the respondent-wife that she was driven out of the matrimonial home after assault. On the other hand, the petitioner alleged that he lived sometimes in the house of his parents-in-law with his wife and he was driven out after physical assault. It is also an admitted fact that the petitioner instituted T.S.(Divorce) of 300 of 2009 against the respondent-wife seeking divorce alleging cruelty exercised by the respondent-wife and an ex parte decree has been passed by the learned Judge, Family Court on 10.09.2010. 5. The respondent is now living in her parental home having no source of independent income. Her father is a retired public servant. Since she has no independent source of income she filed a petition for maintenance under Section 125 of Cr.P.C. She has also contended that decree in the divorce suit was fraudulently obtained and therefore, she challenged the decree by filing appeal but the appeal was withdrawn ultimately with liberty to file appropriate petition before the Judge, Family Court for setting aside ex parte decree and for restoration of the divorce case to file. 6. 6. The petitioner-husband contended that before filing the present application under Section 125 of Cr.P.C., earlier also the respondent-wife filed similar petition under Section 125 of Cr.P.C. seeking maintenance but that petition was dismissed for default. So, the petitioner has got no new cause of action for the fresh petition seeking maintenance. Further the petitioner after the exparte decree of divorce has married again another woman on 30.08.2013 and a copy of the marriage certificate has been annexed with the revision petition. It is also alleged that the respondent voluntarily left the house of the petitioner and that the respondent is not morally and legally entitled to get maintenance. 7. Learned counsel Ms. R. Guha has submitted that the respondent has to prove her case that she has valid reason for living apart from the husband and since the respondent has failed to prove by adducing convincing evidence that she was compelled to leave the matrimonial home, she cannot morally claim maintenance from the petitioner husband. In support of her contention she referred the case of Deb Narayan Halder v. Anushree Halder (Smt.), reported in : (2003) 11 SCC 303 and Chaturbhuj v. Sita Bai, reported in : (2008) 2 SCC 316 . 8. Learned counsel Mr. Bhowmik, on the other hand, has submitted that the respondent-wife examined herself as P.W. 1 and also examined two more witnesses in support of her contention that she was dealt with cruelty in the matrimonial home and was driven out of the matrimonial home. So, the respondent has proved her case and she is entitled to get maintenance. In the admitted position of the case where matrimonial relation is strained between the husband and wife and both are making allegation and counter allegation and where a criminal case was instituted by the respondent-wife against the husband and husband instituted a divorce case alleging exercise of cruelty and the divorce case decreed exparte, it is quite evident that the matrimonial relation between the husband and wife has been strained and therefore, they are living apart from each other. It is not disputed that the respondent-wife has no independent source of income and the petitioner-husband is working in a Veterinary Hospital under the Animal Resource Development Department of the Govt. of Tripura as an Assistant and the salary certificate submitted by the petitioner shows his monthly income is Rs. It is not disputed that the respondent-wife has no independent source of income and the petitioner-husband is working in a Veterinary Hospital under the Animal Resource Development Department of the Govt. of Tripura as an Assistant and the salary certificate submitted by the petitioner shows his monthly income is Rs. 7,308/- and therefore, learned Judge, Family Court considering the income of the petitioner ordered him to pay maintenance @ Rs. 2500/-. 9. I find no illegality, impropriety or incorrectness in the order passed by the learned Judge, Family Court. It appears from the order of learned Judge, Family Court that he has considered the evidence of the petitioner and the respondent meticulously and came to a reasoned finding. There is nothing in law that if one petition under Section 125 of Cr.P.C. is dismissed for default, the petitioner cannot file a second petition seeking maintenance. Maintenance can be sought any time when the petitioner is in need of the same for her survival. 10. The Supreme Court in the case of Chaturbhuj (supra) has observed the object of maintenance referring to the provision of Section 125 of Cr.P.C. The observation made in para 6 reads as follows:- "6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. ( AIR 1978 SC 1807 ) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636 )." 11. The respondent is the married wife of the petitioner. They lived and cohabited as husband and wife with sweet relation initially but ultimately their relation ran into rough weather. Both of them made allegation and counter allegation against each other. The respondent filed Criminal Case under Section498(A) of IPC against the petitioner. The petitioner filed divorce case alleging exercise of cruelty by the respondent. They are not living together since long and the respondent is living in her parental home having no independent source of income. So the petitioner is legally bound to maintain the respondent. The petitioner having means to maintain the respondent cannot shirk his responsibilities on the ground that he has married again. The question whether his second marriage is valid or not is to be decided in due course of law. While deciding a maintenance petition at this stage in the admitted facts and circumstances of the case, I find nothing to consider that because the petitioner earlier filed a maintenance petition and that has been dismissed for default, therefore, she cannot seek maintenance by filing a subsequent petition. The submission of learned counsel Ms. R. Guha that the respondent is not morally entitled to get maintenance is not supported by the facts and circumstances and the evidence on record. 12. The decision of the Apex Court in the case of Debnarayan Halder (supra) is on different context and the ratio cannot be applied in the facts of the present case. 13. The revisional application is, therefore, found to be devoid of any merit and hence stands dismissed. 14. Send back the L.C. records along with a copy of this judgment.