Jyoti Prasad Das vs Manju Das
2021 Latest Caselaw 1853 Gua

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GAHC010169672019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./527/2019

              JYOTI PRASAD DAS
              S/O LATE BHAGWAN DAS, R/O VILL-KEOTPARA, SUALKUCHI, P.S.-
              SUALKUCHI, DIST-KAMRUP(R), PIN CODE -781134, ASSAM.

              VERSUS

              MANJU DAS
              D/O JAY RAM DAS, R/O VILL-DA MATI PARBAT, SUALKUCHI, P.S.-
              SUALKUCHI, DIST-KAMRUP(R), PIN CODE -781134, ASSAM.


Advocate for the Petitioner   : MR. J KALITA

Advocate for the Respondent : MR. K K BHUYAN


                                     BEFORE
                    HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


                                           ORDER

16.08.2021.

Heard Mr. J. Kalita, learned counsel for the petitioner/husband as well as Mr. K.K. Bhuyan, learned counsel for the respondent/wife.

The petitioner herein has been directed by the learned Principal Judge, Family Court No.1, Kamrup (M) at Guwahati, in F.C. (Crl.) Case No.448/2017, vide order dated 20.12.2018, to pay a sum of Rs.8,000/- (rupees eight thousands) per month with effect from the date of Page No.# 2/3

order. The petitioner filed the present petition, raising the only grievance against the order, on the point of quantum of maintenance, which is stated to be on higher side.

In view of the limited challenge in the present petition, this Court will not discuss the other merit of the case, save and except as to quantum of maintenance that has been granted, is appropriate or not.

The learned counsel for the petitioner has submitted that the learned trial Court, without assessing the income of the present petitioner, has determined the amount of maintenance, which is not proper. It is submitted that although the respondent/wife contended that the petitioner has huge income from a shop by the name and style "Icon Silkalaya" at Sualkuchi but the same was not proved by producing relevant documents. On the other hand, by referring to certain documents annexed with the present petition, the trade license issued by the Sualkuchi Gaon Panchayat, dated 01.04.2019, it is submitted that the said shop belongs to Ajit Das, who happens to be the brother of the petitioner. Accordingly it is vehemently contended that the present petitioner, who stated to be a daily wage earner, is unable to pay the maintenance, as directed by the trial Court, which should be reduced to Rs.3,000/- per month.

The learned counsel for the respondent/wife has however objected to such submission that the petitioner cannot resist such claim of maintenance, on the basis of a document which is not produced before the trial Court, whereas it was issued subsequent to the passing of order and is of no consequences. Referring to the pleadings between the parties, it has been contended that the petitioner herein, after filing of the written statement did not turn up before the trial Court, either to challenge the case of the wife or to prove his case, including income. As such, any submission made by the petitioner is liable to be rejected. Further it is submitted that the petitioner, having a cloth shop, he has sufficient income to provide maintenance.

Pursuant to the submission of learned counsel for both the parties, I have gone through the pleadings between the parties as well as the evidence on record. It reveals that save and except denial of ownership of the shop as well as the income, the petitioner did not produce any relevant document, as to the ownership of the said shop. On the other hand, the Page No.# 3/3

petitioner despite giving ample opportunity, did not turn up before the trial Court to cross- examine the witnesses produced by the respondent/wife nor adduced any evidence on his part. That being so, the challenge made in the petition, on the basis of the documents issued subsequent to the order of the trial Court, is of no avail.

However things to be noted that regarding the income of the petitioner, the respondent/wife also unable to bring on record about the ownership of the shop as well as the income of the petitioner and her evidence was on assumption and presumption.

The learned trial Court has also observed in the judgment that the respondent/wife has not produced any document, regarding income of the present petitioner/ husband but holding that the petitioner is legally bound to maintain his wife, so he is to provide a maintenance of Rs.8,000/- per month.

Obviously there is no conclusive evidence as regards the income of the petitioner before the trial Court. On the other hand, the petitioner/husband lost the opportunity to prove his case, at appropriate time.

Having regard to entirety of the matter, the amount of maintenance is now reduced to Rs.7,000/- (rupees seven thousands) per month. The impugned order of the learned trial Court is interfered to that extent and the petitioner is directed to pay the maintenance regularly and the respondent/wife is at liberty to proceed with the execution of the order, in case of default of payment.

With the aforesaid observation and findings, the present revision petition stands disposed of.

Return back the LCR.

JUDGE

Comparing Assistant