Gauhati High Court
Saidur Rahman vs Bojiron Begum on 10 February, 2021
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GAHC010116212018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./205/2018
SAIDUR RAHMAN
S/O. JOYNAL ABEDIN, R/O. VILL. BILASHPUR, P.S. DHALIGAON, DIST.
CHIRANG, (BTAD), ASSAM.
VERSUS
BOJIRON BEGUM
D/O. LATE BUDOR ALI, R/O. KAZIPARA PART II, P.O. AND P.S. CHAPAR,
DIST. DHUBRI, (ASSAM), PIN- 78331. PRESENT ADDRESS- C/O.
KASUMUDDIN AHMED, WARD NO. 9, DHUBRI, P.O., P.S. AND DIST.-
DHUBRI, ASSAM, PIN- 783301.
Advocate for the Petitioner : MR. M H AHMED
Advocate for the Respondent : MR. N UDDIN
JUDGEMENT AND ORDER (ORAL)
Heard Mr. M.H. Ahmed, learned counsel for the revision petitioner/husband. Also heard Mr. N.
Uddin, learned counsel appearing for and on behalf of the respondent/wife.
2. The present revision petition has been preferred against the impugned ex-parte order dated
30.12.2017, passed by the learned SDJM (S), Dhubri, in Misc. Case No.584/2016, whereby directed
the petitioner to pay monthly maintenance @ Rs.7000/-(Rupees seven thousand) only.
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3. To make a brief of the matter, it can be seen from the record that the marriage between the
petitioner/husband and the respondent/wife took place on 03.12.2010, as per the Muslim rites. After
two years of peaceful marital life, the petitioner along with other inmates of his house, started
physical and mental torture, demanding Rs.2 lacs to bring from her parents. Accordingly the
wife/respondent informed the matters to her parents but as her parents did not fulfill their illegal
demands, the petitioner and other family members continued the physical and mental torture and
finally drove her out from the matrimonial home. The respondent/wife, finding no other alternative,
lodged an FIR on 04.11.2016, against the present petitioner and other family members, resulting
registration of Dhaligaon P.S. Case No.236/2016, under Section 498-A/34 of the IPC, read with Section
3/4 of the Dowry Prevention Act and took shelter in the house of her uncle, as her father had already
expired and her brothers are now willing to give her shelter. However the petitioner/husband was
acquitted on the benefit of doubt by the learned CJM, Chirang, Kajalgaon vide order dated
04.10.2017, passed in G.R. No.499/2016.
4. The respondent/wife, claiming herself to have no source of income to maintain her and the
petitioner/husband being serving as SSB constable was drawing monthly salary of Rs.30,000/- to
Rs.35,000/-, filed the Misc. Case No.584/2016, under Section 125 of the CrPC, claiming maintenance
@ Rs.12,000/- per month from the date of filing of the petition.
5. On receipt of notice from the trial Court, the petitioner/husband appeared before the trial Court
and took time for filing objection. However the petitioner/husband failed to appear before the trial
Court and the case proceeded ex-parte against him.
6. During the course of trial, the learned trial Court examined the respondent as PW.1 and her
mother as PW.2 and after hearing the arguments and on perusal of the record, passed the impugned
ex-parte order vide order dated 30.12.2017, directing the petitioner /husband to pay monthly
maintenance @ Rs.7000/-(Rupees seven thousands) only, from the date of order.
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7. Being aggrieved by the impugned ex-parte order, the present revision is preferred by the
petitioner/husband on the ground, inter alia, that the impugned order was passed ex-parte, without
giving opportunity to cross-examine the witnesses produced for and on behalf of the respondent/wife,
that the amount of maintenance as awarded by the learned trial Court is exorbitant, etc. etc.
8. The prime contention raised by the petitioner against the impugned order that he is an SSB
Constable, presently posted at Uttar Pradesh and has to discharge the burden to maintain a big family
along with ailing parents, wife and children, with his earning from salary, so the maintenance that has
been granted by the trial Court at Rs. 7,000/- is on the higher side. Further, he submits that by virtue
of his occupation, he could not take his wife to his place of posting, and being offended, his wife left
the matrimonial home and refused to return back. She lodged the FIR on false pretext, vide GR Case
No. 499/2016, under Section 498 A IPC, from which, he has been acquitted. Thus, the sole grievances
that has been raised that the judgment has been rendered on the basis of the respondent/wife,
without giving him the opportunity to cross-examine the witnesses and he could not avail the
opportunity to appear before the Court or to cross-examine the witnesses as the leave was not
granted to him.
9. I have considered the arguments advanced by the learned counsel for both the parties and also
the matters on record.
10. Admittedly, the petitioner appeared before the trial Court, but as he did not file any written
statement, so the Court proceeded ex parte against him and the order was passed. On the other
hand, there is also no denial that the petitioner is an SSB Constable, now posted at Uttar Pradesh and
being a service holder, he has to obtain leave to appear before the Court. Be that as it may, once the
petitioner appeared before the Court, he could have apprised the Court about his inability, but same
was not done. In that view of the matter, there is no illegality in the order so passed by the learned
trial Court. Order of maintenance was granted far back on 13.12.2017 and the revision was preferred
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in the year 2018 and it is stated by the learned counsel for the respondent/wife that the petitioner has
not paid any maintenance and by this time, huge arrear has accumulated. This Court, directed the
petitioner to deposit 50% of the arrear amount and the 50 % of the current amount before the trial
Court, but no any such document has been produced to reflect such payment, although the learned
counsel for the petitioner has submitted that they have deposited an amount of Rs. 50,000/- before
the trial Court and also ready to pay the arrear in installment.
10. The learned counsel for the petitioner prayed for one opportunity to contest the case as his
absence before the Court was not intentional but due to the service exigencies and the petitioner is
also ready to pay the maintenance awarded, till final decision afresh.
10. Having regard to the submissions made before this Court and the matters on record, with a
view to enable the petitioner to contest the case, the case is remanded back to the learned trial Court,
with a direction to give an opportunity of being heard, by filing a written statement (along with salary
certificate) and with a liberty to cross-examine the respondent and her witnesses in due manner,
subject to payment of maintenance that has already been awarded by the trial Court. So far as
regards the arrear maintenance, the learned trial Court is at liberty to consider such payment by way
of arrear installment, after hearing the learned counsel for both sides.
11. Both the parties are directed to appear before the learned trial Court on or before 30.03.2021.
In absence of the petitioner to avail the opportunity, the earlier order of the trial Court will prevail.
12. With the aforesaid directions, this petition stands disposed of.
JUDGE
Comparing Assistant
