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Gauhati High Court · body

2019 DIGILAW 555 (GAU)

Jyotirmoy Kalita v. Jonamoni Kalita

2019-05-07

HITESH KUMAR SARMA

body2019
JUDGMENT : 1. This criminal revision petition is filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 4.2.2010, passed by the learned Principal Judge, Family Court, in FC(Crl) Case No. 138/2008, under Section 125 Cr.PC granting monthly maintenance allowance of Rs. 2,000/- each to the respondent and her minor child. 2. None appears for the petitioner on call. Also none appears for the respondent on call. Learned counsel Ms. B. Sarma, already appointed as Amicus-Curiae has appeared. I have heard her at length. 3. The fact leading to the case is that the respondent got married with the petitioner in the year 1999 after death of his first wife and stayed together with him as husband and wife. Thereafter, due to alleged torture upon her, she left his husbands house to reside in her parental house. At the time of leaving the house of her husband, she was having a minor child. She filed the petition under Section 125 Cr.PC claiming monthly maintenance of Rs. 3,000/- each to her and her minor child. The petitioner was a government servant and being a Research Officer in the Planning Department, earned about Rs. 22,000/- at that point of time. However, he denied the allegation of torture as well as other allegations made in the petition by way of written statement. 4. The learned court below, after recording evidence of both the sides and hearing the parties, by the impugned order, directed the petitioner to pay monthly maintenance of Rs. 2,000/- each to the petitioner/respondent and her minor child. 5. On perusal of the records of the learned trial court below including the evidence as well as the impugned judgment and on hearing learned counsel for the petitioner, this court is of the view that considering the income of the petitioner as Research Officer @ Rs. 22,000/- at the relevant time of the initiation of the proceeding, granting monthly maintenance allowance of Rs. 2,000/- each to the petitioner/wife and her minor child, does not appear to be in the higher side. 22,000/- at the relevant time of the initiation of the proceeding, granting monthly maintenance allowance of Rs. 2,000/- each to the petitioner/wife and her minor child, does not appear to be in the higher side. So far the fact of refusal to maintain or that she was neglected by the petitioner, the evidence of the respondent makes it appear that there had taken place altercation/quarrels off and on between the petitioner and the respondent for which she left the house of the petitioner and this fact is apparent from the evidence of PW4. Such evidence could not be assailed by the petitioner through his defence evidence of by way of cross-examination. It has also come out from the evidence on record that while the respondent/wife was staying in her parental house, she was not provided maintenance which amounts to negligence in the sense that wherever she is i.e. the wife of the petitioner, the petitioner is bound to maintain his wife and children is a legal position. 6. The allegation that the respondent/wife was working in a school and she earned some amount of money could not be established by the petitioner/husband in the proceeding before the learned court below and no specific evidence to that effect was laid by him. In the absence of any specific evidence, it cannot be held that the wife/respondent was earning sufficient amount to maintain herself. That being so, in the absence of any specific evidence as to the income of the respondent/wife, the petitioner/husband is bound to maintain his wife and the child fathered by him. 7. This court finds that the amount granted to the respondent/wife as monthly maintenance by the learned court below was reasonable considering the salary of the petitioner/husband. That being so, no interference is called for with the judgment and order, dated 4.2.2010, passed in the aforesaid FC(Crl) Case No. 138/2008. 8. There is no illegality and infirmity found in the judgment aforesaid, therefore, the revision petition is dismissed. 9. Stay order, if any, stands vacated. 10. Return the LCR along with a copy of this judgment.