The single judge bench of the Tripura High Court observed that in a case under Section 125 of Cr.P.C., it is the duty of the Court to see as to whether the husband having sufficient means neglects or refuses to maintain his wife or not in considering maintenance allowance in favor of the wife.
It was furthermore observed that disability does not mean that he is totally incapable of doing any job rather he himself admitted that he used to attend a shop as an employee or worker, and directed the husband to pay monthly maintenance allowance at the rate of Rs.1,500 per month to the Petitioner.
Brief facts
The factual matrix of the case is that the Petitioner and the O.P were married according to the Hindu Marriage Rites and Customs and on the first night of the marriage, the Petitioner noticed that OP was partially handicapped and after marriage, she also heard that previously the OP got married which was later on dissolved by a decree of divorce. It was alleged that her mother-in-law used to abuse her in slang language and used to scold her saying that they would not receive anything from her hand as she was of dark complexion. Also, the Petitioner has to do all the household work. Petitioner disclosed all the miserable facts and mental torture committed upon her at her matrimonial home when she visited her parent’s house and expressed her unwillingness to go back to her matrimonial home as she apprehended that if she returned, she would be killed. It was furthermore alleged that O.P. never enquired nor visited the parent’s house of the Petitioner and the O.P. was earning Rs.10,000-12,000/- per month but he was not paying any maintenance to the petitioner.
The written objection was filed by the Petitioner in which it was alleged that the Petitioner was aware that he is partially handicapped and about the divorce also, as the same was disclosed to her before the marriage. It was furthermore stated that The OP did not respond to the petitioner's and her family members' abuse of him, accusing him of being a handicapped person who cannot walk properly and looking foolish. After the marriage ceremony, the petitioner began to express her desire to live apart from the OP as husband and wife, but she eventually gave in and went to her matrimonial home and was given all the respect by the O.P. and his family members. At last, it was asserted that he does not earn Rs.10,000-12,000/- per month rather he earns Rs.3,500/- as an employee in a garment shop and he is very much eager to resume his conjugal life with the petitioner but the petitioner voluntarily left her matrimonial home.
The learned court below rejected the Petition of the Petitioner claiming maintenance under Section 125 CrPC.
Contentions of the Petitioner
The Petitioner submitted that the Petitioner was subjected to physical and mental abuse at her matrimonial home for which she was compelled to leave the matrimonial home. It was furthermore submitted that the Opposite party can’t escape from his obligation of paying maintenance to the petitioner. Also, suppressing his disability at the time of marriage constitutes clearly a case of cruelty upon the Petitioner.
Contentions of the Opposite Party
The O.P. submitted that there exists no refusal or neglect on the part of the husband in order to maintain his wife and he is a disabled person having no source of income. It was furthermore submitted that the case for restitution of conjugal rights was filed and the ex parte decree was passed, even after that the petitioner did not join at her matrimonial home to resume conjugal life with the OP husband.
Observations of the court
The Hon’ble court observed that Section 125 of the Cr.P.C. requires the court to determine whether or not the husband, who has adequate resources, neglects or refuses to provide for his wife and to consider the wife's maintenance allowance.
It was furthermore observed that filing the case of the restitution of conjugal rights doesn’t give any extra privilege to the OP husband to refuse maintenance to the petitioner and O.P. didn’t pay any maintenance to his wife, therefore, she is selling milk of cows to somehow maintaining herself and her mother.
The court relied upon the judgments titled Babita v. Munna Lal, and Rafeeq v. Summayya.
The court noted that the husband of the Petitioner has a disability, however, this does not indicate that he is completely incapable of working; in fact, he has acknowledged that he has worked in a shop in the past. In light of the present scenario of the market, whether a person works or attends any store, he will be paid at least Rs. 5,000 to Rs. 6,000 per month. Also, the OP husband has his own homestead building and he is attending a shop to discharge his functions as a worker or as an employee in spite of his disability
Based on these considerations, the court was of the opinion that the OP husband shall be under a legal obligation to provide maintenance to the present petitioner of the proceeding. However, there was no specific evidence on record in respect of the income of the OP husband, so, it would be prudent if the monthly maintenance allowance at the rate of Rs.1,500 per month is awarded in favor of the petitioner while relying upon the judgment titled Rajesh v. Neha and another.
The decision of the court
With the above direction, the court allowed the revision petition.
Case title: Smt. Kalpana Das Vs Sri Ajay Das
Coram: Hon’ble Mr. Justice Biswajit Palit
Case No.: Crl. Rev. P. No.15 of 2023
Advocates for the Petitioner: Mr. S. Lodh, Adv, Mr. S. Majumder, Adv.
Advocates for the Respondent: Mr. S. Ghosh, Addl. P.P, Mr. R. G. Chakraborty, Adv.
Read Judgment @Latestlaws.com
Picture Source :