Tripura High Court
Sri Dilip Debbarma vs Smt. Shibani Debbarma And Anr on 24 February, 2021
Author: S.G.Chattopadhyay
Bench: S.G.Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev.P.No.28 of 2020
Sri Dilip Debbarma
S/o Sri Hiran Debbarma,
Vill- Nalicherra,
P.S.- Ambassa, Dist.- Dhalai, Tripura
....................Petitioner(s)
Versus
Smt. Shibani Debbarma and Anr.
W/o Sri Dilip Debbarma
Vill - Lathabari,
P.S.- Champahour,
Dist.-Knowai, Tripura
2. The State of Tripura Represented by PP,
High Court of Tripura, Agartala.
..................Respondent(s)
For the Petitioner(s) : Ms. Monalisha Pal, Adv.
For the Respondent(s) : Mr. S.Ghosh, Addl. PP
Mr. K.Saha, Adv.
Whether fit for reporting: No.
BEFORE
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
Judgment and order(Oral)
24.02.2021
[1] This Criminal Revision Petition has been filed
under Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973 (Cr.P.C. in short) against the
impugned judgment and order dated 14.02.2020 delivered
by the Sessions Judge, Khowai Judicial District in Criminal
Appeal. No.05 of 2019.
CRP/28/2020 Page 1 of 16
[2] The said appeal arose out of the judgment and
order dated 10.05.2019 passed by the Judicial Magistrate,
First class, Khowai, in case No. Criminal. Misc. (D) 8 of
2018 whereby the trial court granted the following reliefs to
the respondent wife in a proceeding under the Protection of
Women from Domestic Violence Act, 2005(DV Act, in
short):
i)Monetary relief @Rs.20,000/- per month for the
respondent wife and her son under Section 20 of
the DV Act.
ii)A sum of Rs.1500/- per month under Section
19(6) of the DV Act for paying the rent of the
house which was rented by the respondent wife.
iii)Protection order under Section 18 of the DV
Act directing the husband to abstain from
committing any act of domestic violence on the
petitioner.
[3] The husband being the petitioner challenged the
said judgment of the trial court in appeal before the
Sessions Judge, Khowai Judicial District at Khowai and the
learned Sessions Judge by the impugned judgment
aforesaid partly allowed the appeal of the husband by
CRP/28/2020 Page 2 of 16
modifying the order of the trial court and directing as
follows:
i)The husband was directed to pay Rs.15,000/-
for the maintenance of the petitioner and her
minor son instead of Rs.20,000/-
ii)The direction of the trial court for payment of
monthly house rent @Rs.1500/- to the wife for
payment of house rent was upheld by the
appellate court.
[4] Aggrieved by and dissatisfied with the said
judgment of the learned appellate court, the husband has
impugned this judgment by filing this criminal revision
petition mainly on the following grounds:
i)The appellate court did not consider the fact
that the husband was also maintaining his old
and ailing parents.
ii)The appellate court did not also consider the
fact that the husband led adequate evidence in
the trial court and proved that his wife
committed cruelty on him and ultimately
deserted him for which he filed a petition in the
competent court seeking decree of divorce.
CRP/28/2020 Page 3 of 16
iii)No rationale was followed by the trial court as
well as the appellate court while determining the
quantum of maintenance allowance payable to
the wife.
[5] A brief resume of the facts of the case would be
necessary for disposal of the matter which is as under:
The wife being the petitioner filed an application
under Section 12 of the DV Act in the trial court on
13.12.2018 alleging domestic violence against her husband.
It was stated by her that her marriage with the respondent
was solemnized on 17.11.2013 and she accompanied her
husband to his place after marriage. During marriage her
parents gave valuables like color TV, motor bike, furniture,
jewelry, refrigerator, utensils and Rs.55,000/- in cash. Even
thereafter, her husband committed torture on her to meet
his demand of dowry for a sum of Rs.3,00,000/-.
Ultimately, she was ousted from her matrimonial home as a
result of her failure in fulfilling the demand of her husband.
In her application, she sought for the following reliefs:
i) Protection order directing her husband to
abstain from committing domestic violence on
her.
CRP/28/2020 Page 4 of 16
ii) Directing the husband to provide
compensation for committing domestic violence
on her.
iii) A sum of Rs.20,000/- per month for her
maintenance and for the maintenance of her son
along with house rent, and;
iv) return of her 'Stridhan'
[6] After the application was received in the court
and the case was registered, the husband respondent filed
written objection denying the allegations of his wife. He
asserted that he had love affairs with the petitioner which
matured into marriage and the marriage was solemnized on
19.12.2013. After marriage, his wife petitioner came to his
place and the marriage was consummated. But his wife had
no respect for his old and ailing parents. She always
insisted on him to leave his parents and start living in a
separate mess along with his wife and son. He could not
accede to such proposal of his wife and mainly for this
reason, his wife started misbehaving with him. Ultimately
his wife left his company on her own volition. He stated that
he never committed any kind of violence on his wife. Rather
she committed cruelty on him and deserted him. On this
CRP/28/2020 Page 5 of 16
ground he also filed a petition in court of District Judge,
Ambassa seeking dissolution of marriage which was
registered in the court as TS(Divorce)8 of 2018. Having
come to know about the filing of the divorce case, his wife
filed the petition under Section 12 of the DV Act against him
on frivolous grounds. The husband, therefore, urged for
dismissal of the petition.
[7] The trial court held counseling in several
sessions which did not work. The parties were then given
opportunity to lead evidence. Petitioner wife led evidence of
herself as PW-1 and the land lord of her rented home as
PW-2. She also examined her father Sri Surja Kumar
Debbarma as PW-3 and neighbor Sri Bachan Debbarma as
PW-4.
[8] The respondent husband cross examined the
witnesses adduced by his wife. He also led the evidence of
himself as DW-1, his neighbor Sonamoni Debbarma as DW-
2 and another neighbor called Amit Debbarma as DW-3.
[9] The petitioner wife supported her claim during
the trial of the case. As PW-1, she asserted in her
CRP/28/2020 Page 6 of 16
examination in chief that after she left her in laws' house
and started living in a rented house, her husband used to
visit her and pay a sum of Rs. 3,000/- per month to her to
meet her expenses. Suddenly he stopped visiting her and
making the payments. She also stated at the trial that her
stridhan was retained by her in laws in their house. She,
therefore, also claimed her stridhan while seeking monetary
relief and protection order from court by filing her
application under Section 12 of the DV Act.
In her cross-examination she denied that she
used to use the ATM card of her husband and draw the
whole monthly salary of her husband from bank by using
the ATM Card of her husband. Her witness Sri Pradip Nath
Sharma, PW-2 also supported the case of the petitioner and
stated that initially her husband used to stay with the
petitioner in a rented house. Thereafter, he stopped visiting
his wife and also stopped paying house rent. As a result,
the petitioner fell in acute financial crisis.
[10] PW-3 Sri Surja Kumar Debbarma, father of the
petitioner, stated at the trial that husband of his daughter
CRP/28/2020 Page 7 of 16
does not stay with her and he does not also pay any money
towards the maintenance of his daughter and minor son.
[11] Sri Bachan Debbarma, a neighbor of the
petitioner stated that after leaving her in laws' house, the
petitioner wanted to return to her matrimonial home but
she was not accepted by her in laws.
[12] The husband respondent on the other hand
stated in his examination in chief that his wife left his place
without even informing him. Thereafter, his parents
persuaded her to be back in her matrimonial home. But she
refused. He asserted that only after he filed the divorce
case, his wife moved the court by filing an application under
the DV Act seeking monetary relief and protection order. It
was stated by the husband that from his monthly income of
a sum of Rs.15,000/- he used to spend Rs.8,000/- for
maintenance of his old and ailing parents. Therefore, he
was unable to provide monetary relief to his wife.
[13] DW-2, Sonamoni Debbarma, a neighbor of the
husband, stated that parents of Dilip Debbarma, always
used to live with him and they were maintained by Dilip
CRP/28/2020 Page 8 of 16
Debbarma, husband of the petitioner. It was also stated by
the DW that wife of Dilip Debbarma left him on her own
volition.
[14] DW-3, Amit Debbarma who is also a neighbor of
the respondent husband stated at the trial that he came to
know from the mother of Dilip Debbarma that wife of Dilip
Debbarma had gone to her parental home. When the DW
met the wife of the respondent, she told him about her
unwillingness to return back to her house.
[15] On appreciation of evidence the trial judge
arrived at the conclusion that the husband of the aggrieved
person had committed domestic violence on her and
therefore, the trial court granted relief to the aggrieved wife
as aforesaid. The relevant extract of the judgment of the
trial court is as under:
"In this context, it is also noteworthy that I should not be
oblivious of the fact that as the aggrieved party is the lawful wife of
the respondent, the respondent being an able bodied person should
maintain his wife as it is the moral and legal obligation as well as
responsibility to provide maintenance to his wife. Thus, in this instant
case considering the present socio economic condition and income of
the respondent, in my humble view, it would be justified if the
monetary relief is granted in favour of the aggrieved party. I am of the
view that the petitioner has succeeded in substantiating her claims and
thus she is entitled to get relief from her husband only, i.e.
Respondent No-1. (Husband). As regards the income of respondent
CRP/28/2020 Page 9 of 16
No.1 is concerned, it is not disputed that Respondent No.1 is a govt
employee serving in the TSR. The petitioner has stated in her evidence
that her husband draws salary of Rs.30,000/- per month and the same
stands unrebutted. It is admitted by the respondent no-1 in his w.s. as
well as in his evidence that the petitioner left her matrimonial home
and presently she resided in her parental home. As she is a married
woman it can easily be presumed that she cannot take shelter at the
house of her parents forever. So, in my view her safety and security
must be ensured. Considering the above, I hold that the petitioner is
also entitled for economic relief for the rented house.
Now, we shall scrutinize the entitlements of the aggrieved
woman. It is admitted that the respondent is having aged parents. At
the same time they are having rubber garden. The issues like the real
income of the OP., the extent of his liabilities are ones which lie within
his exclusive domain and the burden u/s 106 of the Evidence Act is
upon him. As he has failed to rebut the contention of the petitioner by
adducing evidence in support of his claim, the claim of the petitioner
stands on a better footing, I have no hesitation to hold that the
respondent possesses sufficient income. As regards the prayer of
petitioner for recovery of the stridhan articles, it is seen that the
respondent stated that the petitioner took away all her Stridhan
articles. Moreover, the petitioner has not cited the listed stridhan
articles. Hence, the aggrieved woman is not found entitled to the relief
for her stridhan articles.
Considering all the above, it is hereby ordered that :
ORDER
i. The petitioner is entitled to get the maintenance allowance of Rs.20,000/- per month for herself and her minor son from Respondent No.1, (Husband). Respondents are also directed not to cause any act of domestic violence upon the petitioner in future. The petitioner is also entitled to Rs. 1500/- per month for the rented house from the respondent husband. Considering the facts and circumstances of this case I do not intend to give any compensation to the petitioner. ii. A copy of this order be given to the parties free of cost and also to the OC of the Kamalpur ps for protection of the aggrieved petitioner.
iii. ................................................. iv. .................................................. v. ..................................................." CRP/28/2020 Page 10 of 16 [16] In appeal, the learned appellate court after taking into consideration the monthly salary of the husband, reduced the monetary relief from 20,000/- to 15,000- and partly allowed the appeal by passing the following judgment:
"7.At the time of taking decision of this point the trial Court discussed it that the present appellant admitted the marriage with the petitioner and the birth of a son. Admittedly this is not in dispute even in this appeal. The main contention of the appellant is only with the issue in regard to the quantum of maintenance and in this regard the appellant side relied upon a decision of our Hon'ble Delhi High Court in the case of Babita Bisht vrs. Dharmender Singh Bisht in Crl. Rev.P. 456/2015. In that case against reduction of the maintenance allowance by the trial Court the petitioner preferred a revision petition before the Hon'ble High Court. In that case even the income of the petitioner was under challenge. After observing the factual aspect the Hon'ble High Court opined in para-18 ".....the impugned Judgment is silent with regard to the rationale as to why 30% has been reduced to 15% and further as to why only 15% of the gross salary has been allowed when it is a settled formula that the maintenance is to be apportioned with two parts for the husband and one part for the wife, when there is no other dependent member." and thereby the order of the trial court was set aside and modified to the extent that the petitioner will be entitled to 30% of the gross income.
The factual aspect in our case is that the petitioner is living with her one minor child. It is also the admitted case of both sides that the parents of the present appellant are also alive though it is stated by the respondent petitioner in her evidence before the trial court that the parents of the present appellant have their own income but except her oral evidence no CRP/28/2020 Page 11 of 16 documentary proof to substantiate the same even the opposite parties also denied about any income of the parents of the present appellant before the trial Court.
8.Hence, considering all these facts and circumstances I am of the view that the impugned order of the trial court dated 10.05.2019 in Crl. Misc(D)08 of 2018 is needs to be interfered and is not sustainable.
ORDER
9.The order is accordingly modified to the extent that the appellant is to pay an amount of Rs.15,000/-(rupees fifteen thousand)only to the petitioner per month for the maintenance of herself and her minor son. In addition to this the appellant is further directed to pay an amount of Rs.1,500/- (rupees one thousand five hundred)only per month for the rented house of the respondent petitioner.
With my above observation this appeal is partly allowed and disposed of on contest.
.......................................................................... ................................................................... .............................................................. ............................................................"
[17] In this factual back drop, the husband filed this revision petition and claimed dismissal of the impugned judgment of the Sessions Judge on various grounds as stated above.
[18] I have heard Ms. Monalisha Paul, learned counsel, appearing for the petitioner husband and heard Mr. K.Saha, learned advocate appearing for the respondent wife. Main contention of Ms. Monalisha Paul, learned CRP/28/2020 Page 12 of 16 advocate is that the monetary relief awarded by the appellate court has become excessive and the court did not take into consideration the income of the husband and his dependency while determining the quantum of the monetary relief. Learned counsel urges the court to reduce the amount to Rs.8,000/- per month.
[19] Appearing for the respondent wife Mr. K.Saha, learned Advocate, on the other hand submits that the salary certificate of the petitioner has been submitted by the petitioner wife which demonstrates that the carry home pay of the husband as on 19.12.20219 was Rs.14,018/-. Learned counsel therefore, contends that the husband is not incapable of paying Rs.15,000/- from his salary for the maintenance of his wife and son. Learned counsel therefore urges the court to maintain the order passed by the appellate court.
[20] The salary of the husband as it appears from the salary certificate dated 19.06.2019 issued by his employer is as follows:
"Office of the Commandant 5th BN Tripura State Rifles (IR-I), HQr, Daluma Amarpur::Gomati Tripura No.F.391/TSR-V/Accts/Bank Loan Cors./2018/7098 Dated, the 19th June 2019 CRP/28/2020 Page 13 of 16 SALARY CERTIFICATE This is to certify that No.09130102 Rfn(GD)Dilip Debbarma of th 5 BN Tripura State Rifles(IR-I), Daluma Amarpur, Gomati Tripura is drawing pay and allowances as per following rates:
Deduction/Subscription:-
(a) Basic Rs.28,600/- (a)GPF Subs. Rs.1,500/-
(b) DA Rs. - (b)P/Tax Rs.208/-
(c) HRA Rs.2288/- (c)GIS Rs.150/-
(d) RMA Rs.800/- (d)GPF/Adv. Rs.3,854/-
(e) CA Rs.300/- (e)F/Adv Tax Rs.500/-
(f) KMA Rs.300/- (f)Pay Recovery Rs.12608/-
(g) MA Rs.500/- Total Deduction Rs.18,820/-
(h) S/Pay Rs .
Total Gross Rs.32,838/-
Net Pay Rs.14,018/-(Rupees-Fourteen thousand eighteen)only.
NB:-This Salary Certificate is issued for court purpose." [21] The said salary certificate demonstrates that the gross salary of the husband as on 19.06.2019 was Rs.32,838/-. By this time the amount must have gone up due to release of annual increment of his salary. The salary components include compulsory deductions under GPF subscription, professional tax, group insurance (GIS), GPF advance etc. In so far as monthly recovery of sum of Rs.12,608/- is concerned, the husband can raise his carry home pay by raising the number of installments for such recovery. Therefore, taking into consideration his gross salary and compulsory deductions from such gross salary, this court is of the view that it would not be difficult for the husband to pay a sum of Rs.10,000/-(ten thousand)only CRP/28/2020 Page 14 of 16 per month as monetary relief for the maintenance of his wife and son.
[22] The fact that the husband is also maintaining his old and ailing parents is not disputed by the wife. Therefore, in view of his income and dependency and the attending facts and circumstances of the case, the husband petitioner is directed to pay a monthly sum of Rs.10,000/- to his wife for the maintenance of his wife and son.
[23] The appeal is thus partly allowed. Such monetary relief shall be paid w.e.f. 13.12.2018 i.e. from the date of filing the application under Section 12 of the DV Act. The said monthly sum of monetary relief of Rs.10,000/- for the month of February,2021 and onwards shall be paid by the husband within the first week of every succeeding month by depositing the same in the savings bank account of the wife failing which trial court will realize the same by asking the employer of the husband to deduct the amount from his salary. The arrears from 13.12.2018 to 31.01.2021 shall be paid by the husband in 12 installments.
The revision petition is accordingly disposed of. CRP/28/2020 Page 15 of 16
Interim Application, if any, also stands disposed of.
Copy of order be given free of cost to both of the parties.
Send down the LCR.
JUDGE Saikat Sarma, P.A CRP/28/2020 Page 16 of 16