Monowara Begum vs The State Of Assam And Anr
2021 Latest Caselaw 1004 Gua

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GAHC010134342017




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

                                  Case No. : Crl.Pet./598/2017

            MONOWARA BEGUM
            W/O ABDUL KAYUM, D/O MOULANA ISMAIL ALI, VILL-BRAHMAN SASAN,
            PO and PS-NILAMBAZAR, DIST. KARIMGANJ, ASSAM



            VERSUS

            THE STATE OF ASSAM and ANR.
            TO BE BY THE PUBLIC PROSECUTOR, ASSAM

            2:ABDUL KAYUM
             S/O LATE MOULANA MAFTAR ALI
            VILL-KHADIMAN
             PO and PS-BADARPUR
             DIST. KARIMGANJ
            ASSA

Advocate for the Petitioner   : MR.D HUSSAIN

Advocate for the Respondent :




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

Date : 16-03-2021

Heard the learned counsel Mr. A.S. Tapader appearing for the petitioner. Also heard Mr. B.J. Dutta, the learned Addl. P.P. for the State of Assam.

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This is an application under Section 482 of the Cr.P.C. challenging the legality and propriety of the Order dated 02.05.2017 passed by the Sessions Judge, Karimganj in Criminal Revision Petition No. 70(03) of 2015.

In a proceeding under Section 125 of the Cr.P.C. the Judicial Magistrate, First Class at Karimganj in Misc. Case No. 202 of 2014 awarded maintenance to a woman and her three children to be paid by her husband. The learned Sessions Judge held that the woman voluntarily left the company of her husband and thereafter she was living in her parents' house on her own. Therefore, she is not entitled to any maintenance.

At this stage Section 125 sub-section 4 and sub-section 5 may be quoted:

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

When the wife is living in adultery or without any sufficient reason she refuses to live with the husband or they are living separately by mutual consent, the wife shall not be entitled to any maintenance. In such case if any order was earlier made, such an order can be recalled by the Magistrate.

Reverting to the case in hand there are materials to show that the parties are already involved in many other matrimonial cases under Protection of Women from Domestic Act. Therefore, the view taken by the Sessions Judge is not based on sound reason. Sub-sections 4 and 5 of Section 125 Cr.P.C. involve issues of fact and those are to be proved with evidence. Therefore, the trial Court is the best forum to decide those issues, not the Sessions Judge while exercising revisional power.

Under aforesaid premised reasons the impugned judgment dated 02.05.2017 passed by the Sessions Judge, Karimganj in Criminal Revision Case No. 70(03) of 2015 is set aside.

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The judgment passed by the Judicial Magistrate on 22.07.2015 in Misc. Case No. 202 of 2014 is affirmed.

The criminal petition stands disposed of accordingly.

JUDGE

Comparing Assistant