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Tripura High Court · body

2016 DIGILAW 233 (TRI)

Pinky Deb, wife of Sri Biswajit Deb v. Biswajit Deb, son of late Shankar Deb

2016-09-05

S.TALAPATRA

body2016
JUDGMENT & ORDER : Heard Ms. S. Deb Gupta, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned counsel appearing on instruction of Mr. S. Sarkar, learned counsel for the respondent. 2. The challenge in this revision petition filed under Section 19(4) of the Family Courts Act, is directed against the judgment and order dated 19.12.2011 delivered in case No. Miscellaneous 332/2010, whereby the prayer made by the petitioner herein, for maintenance, has been rejected by the Judge, Family Court, Agartala, West Tripura on the ground that the respondent is not at fault, whereas the petitioner has left the matrimonial home without any reasonable cause. Hence the petitioner is not entitled to any maintenance at all. 3. Ms. S. Deb Gupta, learned counsel appearing for the petitioner herein, has submitted that from perusal of the impugned judgment itself it would appear that the petitioner, on the ground of cruelty approached the Tripura Commission for Women and also filed a complaint against the respondent under Section 498A of the IPC. The petitioner failing to bear with the cruelty, left the matrimonial home and that cannot be termed as an unreasonable cause. 4. From the other side, Mr. S. Ghosh, learned counsel appearing for the respondent has submitted that, from the impugned judgment it would also appear that after filing the complaint in the Tripura Commission for Women, the petitioner never appeared to pursue the said complaint, even the criminal prosecution launched by the petitioner under Section 498A of the IPC, had fallen through in the trial. The petitioner has harassed the respondent in numerous forms and as a result the respondent has been favoured with a decree of divorce by dissolving the marital relation between the petitioner and the respondent. The petitioner even did not try to have any alimony or maintenance from the respondent during the divorce proceeding. 5. Be that as it may, it appears that since the petitioner filed a petition under Section 125 of the Cr.P.C. for getting maintenance, she may not have insisted on filing a separate application under Section 25 of the Hindu Marriage Act, 1955. The respondent’s acquittal from the criminal prosecution does not stand to show that the allegations were completely remote or without any basis. The respondent’s acquittal from the criminal prosecution does not stand to show that the allegations were completely remote or without any basis. The standard of proof in the criminal prosecution is beyond reasonable doubt, but in the proceeding under Section 125 of the Cr.P.C., as held by this court, is preponderance of probability. These two standards are consequentially different. But what has surprised this court, while scrutinising the records of evidence is that, there was no attempt by the petitioner to discharge the burden of proving the income of the respondent. However, the respondent has stated that he is working in a private shop and does not earn much. 6. Having regard to all the factors as stated, this court is of the view that the basis, on which the maintenance has been denied, cannot be sustained. Accordingly, the impugned judgment is set aside. However, this court does not find any material to quantify the income of the respondent. Having assessed the income notionally, the respondent is directed to pay a sum of Rs. 1,500 (rupees one thousand five hundred) per month to the petitioner w.e.f. 01.09.2016, payable on or before 10th October, 2016 and the respondent shall continue to pay the said maintenance allowance regularly within the 10th day of every English calendar month. The said amount shall be remitted to the petitioner by Money Order and for sending the money by Money Order, the commission has to be borne by the respondent. Alternatively, if the petitioner supplies the Bank Account details to the respondent, the respondent is permitted to remit the said sum within the date as prescribed to the Bank Account of the petitioner. 7. With this observation and direction, this petition stands disposed of. Send down the LCRs forthwith.