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2019 DIGILAW 573 (GAU)

Md. Nurul Ali v. State of Assam

2019-05-09

HITESH KUMAR SARMA

body2019
JUDGMENT : 1. This is a Criminal Revision Petition, filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 08.06.2010 passed in C.R. Case No. 32/2009 by the learned Sessions Judge, Nalbari which was against the judgment and order, dated 31.08.2009 passed in Misc. Case No. 175(M)/2008 under Section 125 of the Cr.PC by the learned Additional Chief Judicial Magistrate, Nalbari awarding maintenance allowance of Rs. 500 per month to the respondent- wife. 2. The learned revisional court, vide the judgment, referred to above, enhanced the maintenance allowance of Rs. 500 per month to Rs. 1,000/- per month to be paid by the petitioner to his wife-respondent. 3. I have heard Mr. MU Mondal, learned counsel for the revision petitioner as well as Mr. PP Dutta, learned Amicus Curiae, who was appointed as Amicus Curiae vide the order, dated 01.02.2019, in view of the absence of the learned counsel for the petitioner on that day and also considering that this is an old pending case. This court also considered that revision petition has to be heard on merit. Accordingly, the learned Amicus Curiae was appointed. However, the learned counsel for the petitioner appears today and has made his submission. I have also taken assistance of the learned Amicus Curiae. I have also heard Mr. BB Gogoi, learned Additional Public Prosecutor, appearing for the State respondent. 4. The fact of the case is that the respondent-wife initiated a proceeding under Section 125 of the Cr.PC against the petitioner claiming monthly maintenance of Rs. 2,000/- for herself and her 2 (two) children on the ground that the 2nd party subjected her to torture, both physically and mentally, even when she was pregnant carrying the 2nd child in her womb and was driven out of his house. But, thereafter she was taken back on a settlement between the parties and she stayed there for some time with the petitioner and then she was again subjected to torture resulting in her leaving the matrimonial home again. The respondent- wife claimed the income of the petitioner to be Rs. 5,000/- per month as driver. The petitioner as 2nd party in the aforesaid proceeding filed his written statement and contested the proceeding denying the allegations made in the petition by the respondent-wife. 5. The respondent- wife claimed the income of the petitioner to be Rs. 5,000/- per month as driver. The petitioner as 2nd party in the aforesaid proceeding filed his written statement and contested the proceeding denying the allegations made in the petition by the respondent-wife. 5. I have perused the judgment of the learned trial court as well as the learned revisional court of the Sessions Judge. 6. It deserves mention here that although maintenance was claimed for the respondent wife and her 2 (two) children yet the learned court below granted maintenance allowance only to the wife in view of the fact that her 2 (two) children are being maintained by the petitioner keeping them with him. 7. On perusal of the judgment of the learned trial court and the evidence available in the record of the learned trial court, it appears that the respondent-wife is the legally married wife of the petitioner which fact is not disputed. There is also no dispute that the petitioner fathered the 2 (two) children through the respondent-wife. 8. The learned court below after examining the evidence of the respondent-wife’s side as petitioner and also the evidence led by the petitioner as opposite party in the proceeding under Section 125 of the Cr.PC and on hearing both the sides, passed the impugned judgment granting maintenance allowance of Rs. 500/- to the respondent-wife to be paid by the petitioner monthly. Against this judgment of the learned trial court, the aforesaid criminal revision petition was filed before the learned Sessions Judge challenging the legality, propriety and correctness of the said judgment and order. The learned Sessions Judge, however, not only affirmed the decision rendered by the learned trial court in the judgment and order dated 31.08.2009 in respect of entitlement of the wife-respondent but even went one step further to enhance the monthly maintenance allowance from Rs. 500/- to Rs. 1,000/-. 9. The first question, therefore, is whether the learned revisional court is entitled, under the law, to enhance the maintenance allowance particularly when there is no revision preferred by the respondent-wife to enhance the maintenance allowance. 10. The learned Amicus Curiae, Mr. Dutta has referred to a decision of the Hon’ble Supreme Court in Savitaben Somabhai Bhatiya vrs. 1,000/-. 9. The first question, therefore, is whether the learned revisional court is entitled, under the law, to enhance the maintenance allowance particularly when there is no revision preferred by the respondent-wife to enhance the maintenance allowance. 10. The learned Amicus Curiae, Mr. Dutta has referred to a decision of the Hon’ble Supreme Court in Savitaben Somabhai Bhatiya vrs. State of Gujarat & Ors., reported in (2005) 3 SCC 636 as well as the decision of the Hon’ble Andhra Pradesh High Court in the case of S. Brahmanandam vrs. Rama Devi & Anr., reported in 2007 Crl. L.J. 811, and submitted that the enhancement of the maintenance allowance by the learned Sessions Judge is within his judicial power. This submission has been made as against the submission made by the learned counsel for the petitioner that in the absence of any application for enhancement or in the absence of any challenge to the amount of maintenance allowance before the learned Sessions Judge by way of a revision petition by the respondent-wife, no order enhancing the maintenance allowance from Rs. 500/- to Rs. 1,000/- per month could have been passed. 11. On hearing the learned counsels on this point as canvassed before this court, I have examined the judgment of the Hon’ble Supreme Court in Savitaben (supra). In that case, the fact reveals that petition claiming maintenance was made while there was a limitation of maintenance allowance upto Rs. 500/- only and at the time, the Hon’ble Supreme Court passed the judgment, the limitation was deleted from the provisions of Section 125 of the Cr.PC. So at the time of passing the judgment by the Hon’ble Supreme Court, the limitation of maintenance was not there in the provision of Section 125 of the Cr.PC. The Hon’ble Supreme Court enhanced the maintenance allowance even in the absence of an application for enhancement. 12. As per the Hon’ble Andhra Pradesh High Court, the learned Amicus Curiae has referred to para 19 and 20 thereof specifically. Para 19 and 20 of S. Brahmanandam (supra) reads as follows:- "19. It is contended on behalf of the petitioner that though the wife claimed only Rs. 500/- per month towards maintenance in the application filed by her, the learned Sessions Judge erroneously enhanced the amount from Rs. 400/- to Rs. l,000/- per month though the application is not amended seeking more than Rs. 500/- per month. It is contended on behalf of the petitioner that though the wife claimed only Rs. 500/- per month towards maintenance in the application filed by her, the learned Sessions Judge erroneously enhanced the amount from Rs. 400/- to Rs. l,000/- per month though the application is not amended seeking more than Rs. 500/- per month. The learned Counsel further contended that even if it is assumed that the Sessions Judge has got power to enhance the amount even without the amendment to the application filed under Section 125 Cr.P.C., this is not a fit case to enhance the amount to Rs. l,000/-. He submitted that the grown up children are with the petitioner and he has to spend lot of amounts for them and he has got children through his first wife also. He further submitted that the respondent-wife is working as employee and earning Rs. 1800/- per month and therefore she is no longer entitled for any maintenance amount and she can maintain herself. On the other hand, the learned Counsel for the respondent-wife contended that even without the amendment of the application, the Sessions Judge has got every power to enhance the amount as there is no bar to grant maintenance more than Rs. 500/- per month in view of the amendment brought out to Section 125 Cr.P.C. and that the Sessions Judge after considering the evidence on record enhanced the amount from Rs. 400/- to Rs. l,000/- giving reasons therefor and therefore this Court cannot interfere with such reasonsed order of the Sessions Judge. 20. Firstly it has to be seen whether the learned Sessions Judge has got power to award more than the amount claimed in the application towards maintenance. The Apex Court very recently in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. held that in an application filed under Section 125Cr.P.C. at the time when maximum limit of maintenance was prescribed, the request for enhancement over and above the maximum amount fixed under Section 125 Cr.P.C. prior to the amendment, can be considered and that the plea that original application has not been amended is too technical to be raised in view of the fact that Section 127 Cr.P.C. permits increase in the quantum. A similar contention as raised in this case was raised before the Apex Court. In the cited case, the application under Section 125 CriP.C. was filed on 1-9-1995. A similar contention as raised in this case was raised before the Apex Court. In the cited case, the application under Section 125 CriP.C. was filed on 1-9-1995. The Magistrate granted maintenance @ Rs. 350/- per month by his order, dated 31-7-1999. The High Court enhanced the quantum awarded to the child from Rs. 350/- to Rs. 500/- with effect from the order passed by the Magistrate. The said amount of maintenance was enhanced by the Apex Court. Considering the peculiar facts of the case, the Apex Court rejected the contention of the learned Counsel therein that as there was no amendment made to the claim petition for the enhancement the Court cannot grant more than the amount claimed, observing that such a plea is too technical. Therefore, in view of the cited decision of the Apex Court, it cannot be said that the Sessions Judge has got no power to grant maintenance more than the amount claimed in the petition for the period subsequent to the amendment of Section 125 Cr.P.C. as Section 127 Cr.P.C. empowers the Court to enhance the maintenance granted under Section 125 Cr.P.C. on proof of a change in the circumstances. Section 127 Cr.P.C. does not mandate that an application is required to be filed to enhance the maintenance amount. The only requirement is on proof of change of circumstances. The Court can enhance or reduce the maintenance amount as the proof of change of circumstances. Here in the instant case, at the time of giving evidence the respondent- wife categorically stated about the income of her husband-petitioner herein and also the requirement of at least Rs. l,000/- per month for her maintenance. The learned Sessions Judge considered the evidence adduced and also admissions made by the petitioner-husband and enhanced the maintenance to Rs. l,000/-. It will be useful to extract the relevant portion of the order of the learned Sessions Judge, which reads as follows: In the evidence, the respondent has clearly admitted that he is getting gross salary of Rs. 18,485/- and he is having three storeyed building in Kothi, Hyderabad and 1000 sq. yards of site on which mulgies are constructed. He also admitted that he is having LIG quarter and he is also getting rents from the mulgies constructed in 1000 sq. yards at Ramachandrapuram. 18,485/- and he is having three storeyed building in Kothi, Hyderabad and 1000 sq. yards of site on which mulgies are constructed. He also admitted that he is having LIG quarter and he is also getting rents from the mulgies constructed in 1000 sq. yards at Ramachandrapuram. It is, therefore, clear from his evidence that the respondent is having substantial properties and getting rents and also drawing his gross salary of Rs. 18.485/-. The revision petitioner claimed maintenance of Rs. 1000/- per month only. Considering the 'standard of life of the respondent, present cost of living and other circumstances, I feel the claim of the revision petitioner for Rs. 1000/- per month towards her maintenance is just and reasonable. The revision petitioner is therefore, entitled to maintenance of Rs. 1,000/- per month with effect from 24-9-2001 'as prayed for. From the above said order, it is clear that the respondent himself admitted about his getting gross salary of Rs. 18,485/- per month, having three storeyed building in Kothi, Hyderabad besides 1000 sq. yards of site in which mulgles were constructed and getting rents from the mulgies besides having one LIG quarter at Ramachandrapuram. The learned Judge gave categorical finding that the husband is having substantial properties and getting rents besides getting gross salary of Rs. 18,485/-. Under these peculiar circumstances of the case and also considering the standard of life of the husband and the cost of living and other circumstances, the learned Sessions Judge enhanced the amount from Rs. 400/- to Rs. l,000/- per month giving effect from 24-9- 2001 the date on which the maximum prescribed is deleted from Section 125 Cr.P.C. I do not find any perversity in appreciation of evidence by the learned Sessions Judge warranting interference by this Court by way of revision. However as the learned Counsel contended that the petitioner is now retired and the respondent is gainfully employed and is capable to maintain herself. I consider it necessary to give liberty to the petitioner herein to approach the learned Magistrate and file an application for alteration or cancellation of the amount granted and to prove that the respondent-wife is capable to maintain herself and there is no need to order maintenance under Section 125 Cr.P.C. The learned Sessions Judge enhanced the costs from Rs. 500/- to Rs. 5,000/-. 500/- to Rs. 5,000/-. As the petitioner approached the several Courts, I do not find that the Sessions Judge is not justified in granting Rs. 5,000/- towards costs. Therefore, in my considered view, there is no need to interfere with any portion of the impugned order. Thus, this point is held accordingly. 13. In the aforesaid judgment of the Hon’ble Andhra Pradesh High Court, the power of the learned Sessions Judge to enhance the maintenance allowance was an issue and the same was decided in the affirmative. The judgment of the Hon’ble Supreme Court relates to an application under Section 125 of the Cr.PC after amendment of the provision of Section 125 of the Cr.PC deleting the ceiling of maintenance allowance. 14. From the para 19 and 20, it appears that the Hon’ble Andhra Pradesh High Court held that it is within the ambit of the power of the learned Sessions Judge to enhance the maintenance allowance. Therefore, although the judgment of the Hon’ble Andhra Pradesh High Court is not binding upon this court yet it has persuasive value. I am persuaded to agree with the judgment of the Hon’ble Andhra Pradesh High Court, in view of the nearly similar facts in the present case with the case which was dealt with in the judgment of the Hon’ble Andhra Pradesh High Court. Therefore, the enhancement is held to be correctly ordered. However, as far as the quantum of enhancement is concerned, this issue as raised by the learned counsel for the petitioner, shall be taken up slightly later. 15. In this instant case, as indicated earlier, there is no dispute that the respondent is the wife of the petitioner. There is also no dispute that the petitioner is bound to maintain his wife who is unable to maintain herself, if she is not covered by the exception provided in Sub- Section 4 of Section 125 Cr.PC. On examination of the evidence on record, there is no instance noticed that the petitioner is entitled to the benefit of Sub-Section 4 of Section 125 Cr.PC as it is not found that without any reasonable cause the respondent has been living separately from her husband-petitioner. 16. On the other hand, the evidence also reveals that on a compromise settlement, the respondent-wife came back to the company of the petitioner-husband after she left once due to the torture meted out to her. 16. On the other hand, the evidence also reveals that on a compromise settlement, the respondent-wife came back to the company of the petitioner-husband after she left once due to the torture meted out to her. But, the torture continued to be repeated even after she came back after the settlement had taken place. 17. That being so, the entitlement of maintenance by the respondent-wife appears to be a fact emerging from the evidence on record. Therefore, the findings recorded by the learned trial court, on the basis of the evidence on record, appears to be a correct one and consequently, the decision rendered by the learned Sessions Judge in respect of entitlement of maintenance allowance by the respondent-wife is also a correct and appropriate one having no illegality committed by him in his decision. 18. Now, we are left with the only question as to the correctness of enhanced amount of maintenance allowance. So far the income of the petitioner is concerned; there is no definite evidence as to the quantum of his income. He is claimed to be a daily labourer. However, the assessment of Rs. 5,000/- as his income is made by the learned court below is claimed to be correct even by the petitioner. 19. That being so, the assessment about the quantum of income taking into account the earning of a daily wage labourer in the year 2008 appears to be proper. Now, the question is whether the enhancement of maintenance allowance to double the maintenance allowance granted by the learned trial court is appropriate or not. Rs. 5,000/- being the income of the petitioner at the relevant point of time, the enhanced maintenance allowance is 1/5th of the said amount. That being so, in the considered view of this court, the same is not in the higher side. Accordingly, no interference is called for so far the enhancement of maintenance allowance is concerned. 20. There is no other issue raised by the learned counsel for the parties as well as the learned Amicus Curiae, and therefore, this court has limited its findings to the issues discussed above. In view of the above, the judgment of the learned Sessions Judge in C.R. Case No. 32/2009, dated 08.06.2010 is affirmed. 21. Send down the LCR along with the copy of this judgment. 22. In view of the above, the judgment of the learned Sessions Judge in C.R. Case No. 32/2009, dated 08.06.2010 is affirmed. 21. Send down the LCR along with the copy of this judgment. 22. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs 7000/- be paid to the learned Amicus Curiae as honorarium for the assistance rendered by him.