Gauhati High Court
Jahanara Begum vs The State Of Assam And Anr on 25 November, 2016
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
& ARUNACHAL PRADESH)
Criminal Revision Petition No. 05 of 2016
Jahanara Begum,
W/o Md. Rustom Ali Bhuyan,
D/o late Akbar Ali,
Resident of village-Kandulimari,
PO Kalatoli Bazar, PS-Chaigaon,
District-Kamrup(R)Assam,
......... Petitioner
-Versus-
1.The State of Assam
2.Md. Rustom Ali Bhuyan,
S/o Late Abdul Rezak Bhuyan,
Resident of village -Shelsuti
Mahtoli Bazar, PS-Baku,
District- Kamrup (R)Assam.
............Opp. Parties
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the Petitioner : Mr. M.A.Sheikh, Advocate
For the opp. parties : Ms. SM Baruah, Addl. P.P.
Mr. D.K.Bordoloi, Advocate
Date of hearing : 09.11.2016
Date of Judgment : 25.11.2016
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JUDGMENT & ORDER (CAV)
This criminal revision petition under Section 401 of the Code of Criminal
Procedure, 1973 has been preferred by the petitioner against the order dated
6.10.2015 passed by the learned Principal Judge Family Court No.II, Kamrup Guwahati
passed in Misc. Case 316/2014 U/S 127 Cr.P.C. whereby the learned Principal Judge
has directed the opposite party no.2 to pay the enhanced maintenance of Rs.2500/-
per month to the petitioner (from Rs.1750/-) with effect from the date of passing of
the order.
2. The petitioner filed a F.C (Crl.) 67/1994 in the Court of Principal Judge Family
Court Kamrup Guwahati claiming maintenance from her husband respondent U/S 125
Cr.P.C. At the time of filing the case she carried pregnancy of seven moths and thereafter a male issue was born to her which was fathered by the opposite party no.2. The claim of the petitioner and her son was contested by the opposite party no.2. However, after long litigation i.e. after fighting upto the Apex Court for her maintenance the petitioner and her son were granted maintenance and ultimately petitioner and her son were getting maintenance of Rs.3,500/- per month till her son attained majority. When son of the petitioner attained majority the opposite party no.2 filed application to stop maintenance and accordingly as per order dated 12.5.2014 of the learned Principal Judge, Family Court stopped the maintenance to the child and petitioner has been receiving maintenance of Rs.1,750/- only for herself from 12.5.2014.
3. Thereafter the petitioner filed Misc. Case No. 316/2014 in F.C.(Crl)67/94 on 21.4. 2015 for enhancement of maintenance from 1,750/- to Rs.7280/- per month with effect from filing the petition on the ground that the petitioner being a house wife having no source of income and she is unable to maintain herself with an amount of Rs.1750/-. On the other hand, the opposite party is a Lot Mandal having salary of Rs. 29,120/- per month and his family consist of two sons one of which turned major and his 2nd wife. That apart, the opposite party is stated to have landed property and from which he earned Rs.50,000/- per month.
34. The opposite party no.2 contested the case by filing objection taking plea that petitioner has own source of income earning Rs.10,000/- to Rs.15,000/- per month and he has other liabilities to maintain.
5. After hearing the learned counsel for the parties the learned Principal Judge, Family Court by his order dated 6.10.2015 enhanced the rate of maintenance from Rs.1,750/- to Rs.2,500/- from the date of order.
6. The impugned order of enhancement of the learned Principal Judge, Family Court has been assailed by the petitioner by way of this revision petition on the ground that the learned Court has failed to consider the principle of law down by the Hon'ble Supreme Court of India in the case of Shamima Farooqui vs Sahid Khan reported (2015) 5 SCC 705, Bhuwan Mohan Singh -vs- Meena & ors, reported in (2015) 6 SCC 353 and Jaiminiben Hirenbhai Vyas & anr vs Hirenbhai Rameshchandra Vyas, reported in (2015) 2 SCC 385, wherein it has been held that maintenance order needs to be a reasoned order and maintenance should be granted from the date of application and such maintenance allowance should be adequate and similar to the standard with which she would have lived in her matrimonial home, but the impugned order virtually denied the enhancement of maintenance of the petitioner in an arbitrary manner. So a prayer has been made to enhance the maintenance to the petitioner to the tune of Rs.7280/- per month.
7. The respondent herein filed affidavit-in-opposition resisting the claim of the petitioner on certain grounds that he was forced to marry the petitioner but even though he divorced the petitioner by sending Talaqnama but the petitioner filed the maintenance case for herself and her son and the learned Principal Judge, Family Court allowed such maintenance. Thereafter, long litigation was prevailed between the parties and the respondent was directed to pay the maintenance to the petitioner and her son and subsequently as the son of the petitioner attained majority his maintenance was cancelled and he is paying maintenance to the petitioner Rs.1,750/- per month. It has been contended that the respondent having several ailments like diabetic, pressure etc. and also liability to maintain his 2nd wife and children is unable to pay the enhanced amount of maintenance prayed by the petitioner. On the other hand petitioner is stated to have Rs.15,000/- approx per month so she is not entitled.
48. Considered the submission of the learned counsel for both the parties. In addition to his submission the learned counsel for the respondent has submitted that the petitioner wife has her own income to maintain herself and as such she is debarred from claiming enhanced maintenance on the ground that has been given in the aforesaid objection. Referring to a decision reported in 2008 (2) SCC 316 Chaturvuj vs Sitavai it has been contended that object of maintenance proceeding is not to punish a person for his past neglect but to prevent vagrancy who have a moral claim to support.
9. I have gone through the documents so annexed by both the parties and their contention raised before the trial Court. Although on the pretext of divorce and other ground the respondent resisted maintenance petition filed by the petitioner but same was not succeeded. The ground raised in the objection as regards the force marriage etc. has no substance in view of the fact that the parties lead a conjugal life and also had a child out of their wedlock. On the next it is found that the respondent failed to prove that the petitioner has own source of income, as has been pleaded by him. On the other hand, it is not disputed by the respondent that he is a service holder /Lat Mandal by profession and his salary was Rs.29,120/- per month at the time of filing of petition for enhancement as on 20.6.2014. By this time the income of the petitioner might have increased to certain extent and the respondent did not disclose his actual income. On that context it can be assumed that the respondent might have salary more than 30,000/- by this time. In view of the fact that the petitioner has no source of income to support herself and it can be safely inferred that an amount of Rs.2500/- (that has been enhanced by the learned Family Court) is not at all adequate to maintain the petitioner having regard to the status of the respondent. Such a resistance to the enhancement is not legally as well as morally cannot be allowed to subsist.
10. It is to be noted that the learned Family Court while enhancing the maintenance has not gone to the status, capability and income of the respondent and has passed the impugned order of maintenance whereby enhancing only Rs. 750/- per month (from Rs. 1750/- to Rs.2500/-) from the date of order. The earlier order of maintenance @ 1750 per month was allowed w.e.f. 12.5.2014 and thereafter the petitioner came up for enhancement of maintenance and by the impugned order dated 6.10.2015 the enhancement of Rs. 750/- has been awarded by the learned Family Court which is not at all proportionate to the income of the respondent. That apart, no 5 reason has been recorded as to why the enhanced maintenance has been granted from the date of order, whereas the petitioner made the prayer for the enhancement from the date of application i.e. 21.6.2014.
11. In Jaiminiben Hirenbhai Vyas (supra) it has been held that the purpose of Section 125 Cr.P.C is to prevent vagrancy and destitution in society and the Court must apply its mind to the option having regard to the facts of a particular case. Section 125 CrPC requires the court to consider making the order for maintenance effective from either of the two dates i.e. from the date of application or from the date of order having regard to the relevant facts. For good reason, evident from its order the court may chose either date. It is neither appropriate nor desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354 (6) CrPC, the court should record reasons in support of the order passed by it, in both eventualities.
12. Having regard to the above proposition of law it is found that in the instant case the learned Principal Judge, Family Court has not given any reason for not granting the enhanced maintenance from the date of application. Whereas, the facts and circumstances eminently justified grant of enhanced maintenance with effect from the date of application, in view of the finding that petitioner has no source of income except the maintenance amount.
13. Further, in the above referred cases it has also been held that the maintenance allowance to wife should be adequate to enable the wife to live with dignity similar to the standard with which she would have lived in her matrimonial home and in this context status become relevant. A wife has a right to live with dignity. The Court should be alive to the object and the spirit of provision U/S 125 CrPC and obviously the provision of 127 CrPC is an extended provision of the same.
14. On due consideration this Court is of the opinion that the impugned order of the learned Principal Judge, Family Court is liable to be interfered with. Having regard to the income and status of the respondent, it is hereby directed that the respondent will pay the maintenance allowance of Rs.5000/- (Rupees Five Thousand) per month to the petitioner with effect from the date of the application i.e. 21.6.2014. Accordingly, the impugned order dated 6.10.2015 passed by the learned Principal Judge, Family Court in Misc. Case No. 316/14 stands modified. Obviously, the respondent has to pay 6 certain amount of arrear to the petitioner, in view of such modification of the order the learned Family Court can decide the payment of arrear, if necessary, to be paid in proper installments, if so preferred by the respondent.
15. With the observation made above, the petition stands disposed of.
Return the LCR forthwith.
JUDGE Nandi