Gauhati High Court
Page No.# 1/ vs The State Of Assam And Anr on 26 March, 2026
Page No.# 1/11
GAHC010073682022
2026:GAU-AS:4507
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./165/2022
MD. JIKIBUR RAHMAN
S/O SAFARUDDIN
R/O KATAHAGURI
P.S. DHING, DIST. NAGAON, ASSAM, PIN-782123
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:MUSTT. MABIYA KHATOON
W/O MD. JIKIBUR RAHMAN
R/O KUWAIKOTA
P.S. BATADRAVA
DIST. NAGAON
ASSAM
PIN-782122
BEFORE
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
Advocate for the petitioner(s): Mr A A Dewan.
Advocate for the respondent(s): Mr R J Baruah, APP
Mr B K Sen, Legal Aid Counsel, R-2.
Page No.# 2/11
Date on which judgment was reserved : NA
Date of pronouncement of judgment : 26.03.2026
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (ORAL)
Heard Mr A A Dewan, learned counsel appearing for the petitioner. Also heard Mr R J Baruah, learned Additional Public Prosecutor appearing for the State of Assam and Mr B K Sen, learned counsel appearing as the Legal Aid Counsel for the respondent No. 2.
2. This Criminal Revision Petition arises from an order dated 17.03.2022, passed by the learned Sessions Judge, Nagaon, in Criminal Appeal No. 17(N)/2019, by which the order dated 21.02.2019, passed by the learned Judicial Magistrate First Class, Nagaon, in DV Case No. 137/2016, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, has been modified. The respondent No. 2 herein had, as an applicant/petitioner, preferred DV Case No. 137/2016 under Section 12 of the Protection Of Women From Domestic Violence Act, 2005 praying for the following reliefs-
Page No.# 3/11 "A. Protection order under Section 18
(i) To prohibit the respondents from inflicting or continuing any kind of domestic violence against her.
B. Residence order under Section 19
(i) To direct the respondents to provide for her residence at their house or provide for her alternative accommodation.
(ii) Monetary reliefs under Section 20
(iii) To direct the respondents to provide her Rs. 5,000/- as maintenance to the aggrieved and her child.
C. Compensation under Section 22
(i) Compensation of Rs. 1,00,000/- from the respondents from the respondents for domestic violence."
3. By an order dated 21.02.2019, the learned JMFC, Nagaon had disposed of the aforesaid DV case by granting a maintenance of Rs. 1,000/- to the respondent No. 2 herein and her child under Section 20 of the PWDV Act. The petitioner herein was also directed to pay a compensation of Rs. 2,000/- to the aggrieved woman under Section 22 of the Act. The relief was required to come into force from the date of the final order. The protection sought for by the aggrieved woman from domestic violence was also allowed.
4. The respondent No. 2 herein had thereafter presented the Criminal Appeal No. 17 (N)/2019, before the learned Sessions Judge, Nagaon, praying for an enhancement of the maintenance granted and also for compensation of Rs. 50,000/-, which was allegedly paid by the respondent No. 2 during the subsistence of the marriage.
Page No.# 4/11
5. By the order dated 17th of March, 2022, passed in Criminal Appeal No. 17(N)/2019, the learned Sessions Judge, Nagaon, had enhanced the maintenance to a sum of Rs. 3,500/- towards maintenance of the appellant/wife and her minor son and further a sum of Rs. 40,000/- was found to be just and proper in the form of compensation and accordingly, the same was allowed.
6. The learned counsel for the petitioner in this Criminal Revision Petition has submitted that there is no basis for the learned Appellate Court to have come to a conclusion that the compensation would be fixed at Rs. 3,500/- per month and for fixing the compensation at Rs. 40,000/- per month. The learned counsel for the petitioner submits that the learned Appellate Court had committed an error when it took it upon itself to assume the income of the petitioner on the basis that he might have been a daily wage labourer and by calculating his income under the Minimum Wages Act of 1948, the amount of Rs. 3,500/- was arrived at.
7. The learned counsel for the petitioner has submitted that though it may be true that there has been inflation because of the high rise of price of essential commodities and further, the upbringing of a minor son by providing him nourishment and education could have been factors to be taken into consideration, however, without determining the income, either actual or Page No.# 5/11 projected, of the petitioner, the learned Appellate Court had committed error in enhancing the amount.
8. It is further submitted by the learned counsel for the petitioner that the amount of Rs. 40,000/- arrived at as compensation did not have any basis. He has accordingly prayed that the criminal revision petition be allowed and the original order of the Trial Court be upheld.
9. Mr B K Sen, learned counsel appearing for the respondent No. 2, as a Legal Aid Counsel has submitted that there is no infirmity in the order passed by the learned Appellate Court while deciding the amount of Rs. 3,500/- to be paid cumulatively towards the maintenance of the appellant and the minor child. The learned counsel has submitted that on today's date, with the inflation in price etc. maintenance at Rs. 3,500/- is also not sufficient and as such, the grant of the said maintenance does not deserve any interference of this Court. The learned counsel has further submitted that the learned Appellate Court had taken into account the circumstances under which the respondent No. 2 had to leave the matrimonial home and suffer along with her son. He has submitted that in view of the facts that the respondent no.2 and the child have now become dependent on the father of the respondent No. 2, the compensation granted was just, adequate and proper. He has accordingly prayed for dismissal Page No.# 6/11 of this criminal revision petition.
10. This Court takes notice of the fact that in the case of Rajnesh -Vs- Neha; reported in AIR ONLINE 2020 SC 915, the Apex Court had directed that the compensation or maintenance to be granted to an aggrieved party has to be done on the basis of disclosure of the liabilities and assets of each of the parties before the Court. It is also seen that such observations were made while deciding a case under the PWDV Act, 2005. Relevant portion of the aforesaid Judgment is quoted hereinbelow for a ready reference:-
"Final Directions In view of the foregoing discussion as contained in Part B - I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the Page No.# 7/11 subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B - III of the judgment. The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
Page No.# 8/11
(d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B - IV above.
(e) Enforcement / Execution of orders of maintenance For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI."
11. This Court finds that the learned Trial Court had decided the amount of compensation prior to the law being laid down by the Judgment of Rajnesh
-Vs- Neha (supra). However, when the criminal appeal was being decided, the said Judgment had come into force. Accordingly, this Court is of the opinion that the learned Appellate Court was required to have taken evidence regarding the assets and liabilities of each of the parties before coming to a conclusion regarding the amount of maintenance to be determined and also as regards the amount of compensation required to be paid to the aggrieved party.
Page No.# 9/11
12. The learned counsel for the parties have submitted in tandem that the interest of justice would be served in the event, the matter is remanded back to the learned Trial Court with directions to the respective parties to file their affidavits of assets and liabilities before the learned Appellate Court and if thereafter the Learned Court is required to decide the amount of maintenance and compensation, if any, to be paid to the aggrieved party.
13. Keeping in view the consensus arrived at by the learned counsel appearing for the contesting parties, this Court, therefore, finds it to be in the interest of justice to keep in abeyance the order dated 17.03.2022, passed in Criminal Appeal No. 17 (N) of 2019, for the time being. The parties are directed to appear before the learned Sessions Judge, Nagaon, on 4th of May, 2026 without any requirement of further notice. Upon appearance of the parties before the Court, the learned Sessions Judge, Nagaon, shall proceed with the criminal appeal by requiring the parties to file their affidavits of assets and liabilities. On such affidavits being filed and after following the due procedure of law, the learned Sessions Judge shall take a decision on the amount of compensation required to be paid to the aggrieved party/respondent No. 2 herein, as well as the amount of compensation that may be just, adequate and proper in the facts and circumstances of the case. The order dated 17.03.2022, which is kept in abeyance for the time being, till disposal of the Criminal Appeal No. 17(N) of Page No.# 10/11 2019, shall not, in any manner, influence the outcome of Criminal Appeal No. 17(N) of 2019 and the order dated 17.03.2022 shall merge into the final orders to be now passed by the learned Sessions Judge after considering the materials which may be placed by both the parties before the Court.
14. This order shall not be treated to impede in any manner, any right of the respondent No. 2, to pray for an enhancement of the maintenance and compensation already granted by the learned Trial Court. Any such prayer for enhancement shall be dealt with by the learned Sessions Judge, if, as and when such application is filed. This order shall also not impede any defence that many be taken up by the petitioner herein to resist any claim for enhancement.
15. Awaiting the finalisation of Criminal Appeal no 17(N) of 2019, the petitioner shall continue to pay the maintenance of Rs. 1,000/- as determined by the learned Trial Court to the respondent No. 2. In case, there is any enhancement, the same shall prevail over the orders passed by the learned Trial Court. The petitioner shall also pay the compensation of Rs. 2,000/- ordered by the learned Trial Court, if not already paid. The respondent No. 2 shall be at liberty to withdraw the maintenance, which is stated to have already been paid by the petitioner herein, before the learned Trial Court. In case, such maintenance has not been paid, the petitioner shall clear all arrear dues before his defence in the Page No.# 11/11 criminal appeal is taken up for consideration. Arrears beyond a period of two months from the date of appearance of the parties may be recovered in the manner provided for in law.
16. The original order of maintenance and compensation had been passed in the year 2019. In such circumstances, it is expected that the Court now considering the maintenance and compensation would take it up in the correct zeal and have the same disposed of within a period of 3 (three) months from the date of appearance of the parties.
17. The Criminal Revision Petition stands disposed of.
JUDGE Comparing Assistant