Tripura High Court
Smt. Kripa Rani Debbarma vs Sri Shymal Tripura on 10 February, 2021
Equivalent citations: AIRONLINE 2021 TRI 35
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. 76 of 2019
1. Smt. Kripa Rani Debbarma,
Wife of Sri Shymal Tripura,
Daughter of Sri Nilo Debbarma
Resident of Bishramganj, Guliraibari,
PS: Bishramganj,
District- Seahijala Tripura.
2. Rasmi Tripura (minor)
3. Rajbir Tripura (minor)
Both are daughter of Sri Shymal Tripura
Resident of Bishramganj, Guliraibari,
P.S-Bishramganj, District-Sepahijala Tripura
--- Petitioner(s)
Versus
Sri Shymal Tripura
Son of Sri Suryasen Tripura
C/O Biman Naha
Resident of Krishna Nagar,
Durgachowmuhani
Opposite of Ramnagar Road No.-7,
Agartala, District-West Tripura
Permanent Address:
Bortali, Surendra Sardar Para,
P.S-Manu, Sabroom,
District-South Tripura
---- Respondent(s)
For Petitioner(s) : Mr. Samar Das, Adv.
For Respondent(s) : Mr. K.K. Pal, Adv.
Date of hearing : 07.01.2021
Date of pronouncement : 10.02.2021
Yes No
Whether fit for reporting :
√
Crl. Rev. P. 76 of 2019
Page 2 of 16
BEFORE
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Judgment & Order
[1] This criminal revision petition has been filed
challenging the judgment dated 15.07.2019 delivered in case No. Misc. 516 of 2016 by the Additional Judge, Family Court, Agartala in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C in short) whereby the respondent (husband hereinafter) was directed to pay Rs.3,000/- (Rupees three thousand) for each of his daughter Rasmi Tripura and son Rajbir Tripura towards their maintenance. Maintenance allowance having been denied to the wife, she has challenged the impugned judgment of the Family Court in this criminal revision petition.
[2] Brief facts of the case are as under:
The wife filed an application under section 125 Cr.P.C in the Family Court at Agartala claiming maintenance allowance @ Rs.15,000/- (Rupees fifteen thousand) per month for the maintenance of herself and her son and daughter. In her said application, she stated that her marriage with the respondent was solemnized on 13.06.2007 in accordance with the rites and customs of the Hindu marriage and during their marriage her parents gave Rs.60,000/- (Rupees sixty Crl. Rev. P. 76 of 2019 Page 3 of 16 thousand) in cash to the husband and also gave ornaments, furniture, refrigerator, utensils etc of huge value pursuant to the demand of her husband. After marriage, she accompanied her husband to her matrimonial home and lived a conjugal life with him for about 2 (two) months at Bishramganj in Sepahijala District. Thereafter the husband changed his place of residence from Bishramganj to Agartala for his occupational purpose where the husband and wife started living together in a rented house. A few days thereafter, her husband started subjecting her to torture for dowry. He started extracting money ranging from Rs.5,000/- to Rs.10,000/- every month from her father though he was earning not less than Rs.30,000/- (Rupees thirty thousand) per month from private tuition by giving tuition to the students of various English medium schools including Holy Cross School, Auxilium Girls' School, Don Bosco School etc. Apart from his income from private tuition, he also owned huge landed property including a rubber garden on 30 acres' of land in his own name at Sabroom. Despite the differences and disputes between them, the wife conceived and delivered a daughter in 2008. Even after the birth of their daughter the husband continued torturing her. The husband also became alcoholic by that time. When they were living in a rented house at Agartala in 2012, the husband developed illicit relationship with their maid servant from November 2015. On a day in the Crl. Rev. P. 76 of 2019 Page 4 of 16 month of Janurary, 2016, the wife discovered them in compromising position. When she raised protest she was beaten up by her husband. At that time the wife was carrying her second pregnancy. On 26th April, 2016 she left her matrimonial home along with her daughter for her parental home at Bishramganj. On 28th June, 2016 she reported the incidents of atrocities of her husband to police. She also reported the matter to the State Commission for Women. On 18th August, 2016 she gave birth to a son at the District Hospital at Udaipur in Gomati District. The wife had no source of income for maintenance of her children as well as of herself. Her husband on the other hand had a handsome monthly income from private tuition and properties. The wife, therefore, approached the Family court, Agartala claiming Rs.15,000/- (Rupees fifteen thousand) per month for their maintenance. [3] When notice was issued to the husband from the Family court, he appeared in court and filed written objection against the claim of his wife. He admitted his marriage with the petitioner and paternity of the daughter. But he denied the paternity of the son and claimed that when she conceived second time he had no access to her. It was further stated by the husband that during her second pregnancy when she was living with her parents at Bishramganh, the husband sent a messenger to her requesting her to come back. She refused Crl. Rev. P. 76 of 2019 Page 5 of 16 and informed him through the messenger that a tumor developed in her stomach and for this reason she was unable to come back to him. The wife thus concealed her pregnancy which created doubts about his paternity of the son. He alleged that his wife never maintained a good relationship with him. According to him, he purchased a rubber garden with his savings from private tuition in the name of his wife which was sold out by her. Thereafter they had undertaken various businesses together including a poultry farm and manufacture and sale of garments. All those businesses were carried out in the parental house of the wife in her name and the wife used to look after those businesses and keep the profits in her accounts. He denied her allegations of misbehavior. He also denied to have developed illicit relationship with the maid servant. Rather, it was alleged by him that the wife engaged the maid servant for her own convenience and he had no time to make an affair with her, because he used to work from dawn till night to earn bread for the family. It was further alleged by the husband that the wife, during the period of her stay with him at Agartala, had taken loan from many people beyond his knowledge. Thereafter she left for her matrimonial home at Bishramganj without repaying such loan. After his wife left, the people from whom she borrowed money assembled in his house at Agartala and demanded repayment of their loan. One of Crl. Rev. P. 76 of 2019 Page 6 of 16 them also filed a case against his wife under the Negotiable Instrument Act claiming the refund of loan. This apart, their maid servant Smt. Laxmi Malakar also filed FIR against the wife at East Agartala police station. It was alleged by her husband that in fear of the consequence of her misdeeds, she took shelter with her parents at Bishramganj. She did not return even after the husband requested her to come back. According to the husband, he earns not more than Rs.6000/- (Rupees six thousand) per month from his private tuition. His wife on the other hand has huge amount of monthly income from her business at Bishramganj. The husband, therefore, refused to provide any maintenance allowance to his wife and the son. [4] In the course of trial the wife examined herself as PW-1, her father Sri Nilo Debbarma as PW-2.
[5] The husband on the other hand examined himself as OPW-1. No other witness was examined on his behalf. [6] On appreciation of evidence, the learned Additional Judge, Family Court, Agartala came to the conclusion that the wife was an earning lady whose monthly income from business ranged from Rs.5,000/- to Rs.7,000/-. As a result, maintenance allowance was denied to her. The learned Additional Judge, Family Court, however, after considering the evidence and the facts and circumstances of the case, granted monthly maintenance allowance to the children and directed the Crl. Rev. P. 76 of 2019 Page 7 of 16 husband to pay Rs.3,000/- (Rupees three thousand) per month for each of his 2 (two) children.
[7] Having been aggrieved with the order of refusal of maintenance allowance to her, the wife has filed this criminal revision petition challenging the judgment and order of the Family court.
[8] Heard Mr. Samar Das, learned counsel appearing for the wife as well as Mr. K.K. Pal, learned advocate representing the husband.
[9] Appearing for the wife, Mr. Samar Das, learned counsel has contended that the trial court has failed to appreciate the facts and circumstances of the case from the right perspective and committed serious error in refusing maintenance allowance to the wife. According to Mr. Das, learned counsel, the efforts made by the wife after her desertion for survival cannot be taken into consideration to determine her ability to maintain herself. "Unable to maintain herself" appearing under section 125, Cr.P.C would depend on the means available to the wife while she was living with her husband. In support of his contention Mr. Das, learned advocate has referred to the decision of the Apex Court in Chaturbhuj Vs. Sita Bai reported in (2008) 2 SCC 316 wherein the Apex Court has held as under:
Crl. Rev. P. 76 of 2019 Page 8 of 16 "6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.
Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636."[Emphasis supplied] [10] It is argued by Mr. Das, learned counsel of the wife that the wife has proved the various incidents of atrocities and torture mated out to her by her husband which compelled her to part with his company despite her haplessness. Further Crl. Rev. P. 76 of 2019 Page 9 of 16 submission of Mr. Das, learned counsel is that the husband has admitted that admittedly the husband is an educated person and he is having income from his private tuition and other properties. In these circumstances, the trial court should not have refused maintenance allowance to the wife. [11] Mr. K.K. Pal, learned counsel appearing for the husband on the other hand submits that the husband has been able to prove by adducing sufficient evidence that his wife brought all these allegations against him to get rid of her misdeeds. According to Mr. Pal, learned counsel of the husband, the wife could not produce any document with regard to the income of her husband. Rather it has been proved before the Family court that she owns several businesses from which she earns about Rs.7,000/- (Rupees seven thousand) per month and therefore she cannot be said to be unable to maintain herself. It is, therefore, argued by Mr. Pal, learned counsel that the Family court has rightly denied maintenance allowance to her and the judgment of the Family court does not call for any interference in this revision petition.
[12] In her evidence at the trial court the petitioner wife has supported her plaint case. She has reiterated in her evidence that she parted with the company of her husband under compelling circumstances. According to her she was severely tortured by her husband which compelled her to leave Crl. Rev. P. 76 of 2019 Page 10 of 16 him. She has also asserted in her evidence that monthly income of her husband is around Rs.20,000/- (Rupees twenty thousand) per month. Though she claimed Rs.15,000/- (Rupees fifteen thousand) in her petition, in her testimony in court, she claimed Rs.10,000/- (Rupees ten thousand) per month.
In cross examination, she admitted that the son was born to her when she was living with her parents. She denied to have borrowed loan from others and she also denied to have issued any cheque to her creditors. She also denied in cross that she fled from Agartala in fear of her creditors. She denied to have monthly income of Rs.15,000/- (Rupees fifteen thousand).
[13] Her father Sri Nilo Debbarma [PW-2] also supported the case of his daughter. He told the trial court that following the quarrel with her husband, she left her husband and returned to her parental home at Bishramganj. He admitted that his daughter was running a business at Bishramganj from which she had a monthly income of about Rs.7,000/- (Rupees seven thousand). He also admitted that the land where they constructed their house at Bishramganj also belonged to the husband of his petitioner daughter.
In his cross examination, the PW denied that criminal cases were pending against his daughter. He also Crl. Rev. P. 76 of 2019 Page 11 of 16 denied that his daughter was arrested in connection with one of those cases.
[14] The husband on the other hand examined himself as OPW-1. He repeated the averments made by him in his written objection. He stated at the trial that his wife borrowed huge amount of loan from her creditors for business. When she could not repay their loan, she fled to Bishramganj. He has further stated that his monthly income is less than Rs.6,000/- (Rupees six thousand) out of which he pays monthly rent of Rs.2,000/- (Rupees two thousand) for the rented house taken by him at Agartala. The husband has further deposed that his wife along with her father earns Rs.40,000/- (Rupees forty thousand) from their business and she is quite able to maintain herself.
In his cross examination, he admitted that he had no document in his possession to prove the income of his wife. He denied to have any extra marital relationship with his maid servant. He also denied to have committed any kind of torture on his wife.
[15] As discussed, on appreciation of evidence the Family court has refused maintenance allowance to the wife on the ground that she has income from her business and she is thus able to maintain herself. While denying maintenance allowance to the wife, the trial court has allowed maintenance Crl. Rev. P. 76 of 2019 Page 12 of 16 allowance at Rs.3,000/- (Rupees three thousand) per month for each of their 2 (two) minor children. Extract of the findings of the learned trail court is as under:
"8. Analyzing the evidence of the petitioner and the O.P side it is clear that the petitioner is the legally wedded wife of the O.P. It also reveals from the evidence of the petitioner side that the O.P treated the petitioner with cruelty and also assaulted her on demand of money. The O.P. side failed to bring anything in the cross examination of the petitioner side so as to disbelieve them P.W-2 the witness of the petitioner side also supported the petitioner's case relating to assault committed upon the petitioner. The petitioner in her evidence stated that she has no income of her own and she is dependent upon her parents. But analyzing the evidence of P.W-2 who is the father of the petitioner stated that the petitioner is earning Rs.5,000/- to Rs.7,000/- per month by doing business. P.W-2 also admitted that the petitioner also helps him financially. Thus, the evidence of the petitioner is contradictory to evidence of P.W-2 relating to her income. Thus, as per the evidence adduced by the petitioner side, it is clear that the petitioner is doing business and she is earning Rs.5,000/- to Rs.7,000/- per month. So, she is capable of maintaining herself. Now coming to the income of the O.P side as the O.P is a private tutor at Agartala his monthly income from private tuition is considered as Rs.15,000/-. The O.P in his cross examination admitted that he is Crl. Rev. P. 76 of 2019 Page 13 of 16 having rubber garden hence, his income from business is assessed @ Rs.5,000/- per month. Thus the total income of the O.P is assessed as Rs.20,000/-. Thus, it is clear from the evidence of both the sides that the petitioner of this case is the legally wedded wife of the O.P and the petitioner No. 2 and 3 are not maintained by the O.P inspite of having sufficient means.
All the points are accordingly decided in favour of the petitioner side.
9. Now it is to be decided that what should be the quantum of maintenance the petitioner is entitled to get.
Accordingly, from above discussion made I am of the considered opinion that the petition filed by the petitioner U/S 125 Cr.P.C seeking maintenance from the O.P of this case has got merit and accordingly the same is hereby allowed.
10. In the result, the O.P is hereby directed to pay maintenance of Rs.3,000/- each per month to the petitioner No.2 and 3 i.e. total Rs.6,000/- per month from 01.07.2019 until further order.
The O.P. is also directed to pay such maintenance to the petitioner within 10th day of every English calendar month by money order after remitting the cost of money order therefrom until further order."
[16] While allowing maintenance allowance for each of the 2 (two) children @ Rs.3,000/- (Rupees three thousand) per month, the Family court has declined to grant any maintenance allowance to the wife on the ground that she is capable of Crl. Rev. P. 76 of 2019 Page 14 of 16 maintaining herself. Though the wife has denied to have any income of her own, her father Nilo Debbarma [PW-2] in no uncertain terms has stated at the trial that monthly income of her daughter is Rs.7,000/- (Rupees seven thousand) from her business.
[17] Admittedly, after leaving her husband she has been living with her parents on the plot of land provided by her husband at Bishramganj. It is not denied that after marriage, her husband provided money and materials to her for setting up her business at Bishramganj.
[18] Section 125 of the Code of Criminal Procedure, 1973 provides that the wife, who is unable to maintain herself, is entitled to maintenance allowance from her husband who inspite of having sufficient means neglects or refuses to maintain his wife.
[19] In the given case, the wife has been living separately from her husband over a long period of time. She could not produce any plausible evidence to establish her claim that her husband was responsible for termination of their relationship. Rather the facts and circumstances of the case demonstrates that after the wife left her husband he made efforts to bring back his wife which did not work. It is evident that while they lived together before their separation, the Crl. Rev. P. 76 of 2019 Page 15 of 16 husband and wife setup various businesses together. They purchased a rubber garden together. Then they setup a poultry farm and the wife also set up her business of selling garments at her parental house at Bishramganj. It has surfaced on record that the wife had a business from before their separation. Thus the wife cannot derive any benefit from the decision of the Apex Court in the case of Chaturbhuj (Supra) which has been relied on by her. The husband on the other hand has stated that his monthly income from private tuition is not more than Rs.6,000/- (Rupees six thousand). It is also stated by him that from this income he maintains himself and pays monthly rent of Rs.2,000/- (Rupees two thousand) for the house where he is residing at Agartala. However, he cannot shirk off his responsibility of maintaining his minor children. The learned Family court has rightly directed him to pay monthly maintenance allowance of Rs.3,000/- (Rupees three thousand) per month for each of his children.
[20] Since the evidence on record demontrates that the wife has income and she is not unable to maintain herself, there is no infirmity in the judgment of the Family court whereby maintenance allowance has been denied to her. Therefore, the impugned judgment of the learned Family court does not call for any interference in revision. Crl. Rev. P. 76 of 2019 Page 16 of 16 [21] Resultantly, the petition stands dismissed and the case is disposed of.
JUDGE Rudradeep Crl. Rev. P. 76 of 2019