Gauhati High Court
Jaseph Ahmed @ Josef Ahmed vs Dibbya Begum on 9 November, 2021
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GAHC010193922018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./325/2018
JASEPH AHMED @ JOSEF AHMED
S/O MD. FORAZ ALI, R/O VILLAGE GERGERIA, MOUZA MANIKPUR, PO
PUB RIHABARI, PS PATACHARKUCHI, DIST. BARPETA, ASSAM, PIN-781329
VERSUS
DIBBYA BEGUM
W/O MD. JASEPH AHMED @ JOSEF AHMED, D/O MIRAJ ALI, R/O NIZ
HALDA, MOUZ PAKA, PO SARTHEBARI, PS SARTHEBARI, DIST. BARPETA,
ASSAM, PIN-781307
Advocate for the Petitioner : MR. U K DAS
Advocate for the Respondent : MR. S S S RAHMAN
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
09-11-2021
Mr. U.K. Das, learned counsel represents the petitioner.
Mr. K. Brook, learned counsel represents respondent.
This criminal revision petition is made under Section 397, read with Sections 401
of the Cr.P.C., challenging the legality, propriety and correctness of the judgment
and order, dated 22-06-2018, passed by the Principal Judge, Family Court,
Barpeta, in F.C. (Crl.) No. 121/2015, under Section 125 of the Cr.P.C. granting
monthly maintenance allowance @ 1500/- per month to the respondent/wife
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and Rs.1,000/- per month to their minor child, totaling the amount of Rs.2500/-
to be paid by the petitioner/husband.
I have perused the petition along with annexures furnished therewith including
the copy of the impugned judgment and order. I have also perused the record
of the learned Court below including the evidence.
I have heard the learned counsel aforementioned.
The respondent, as petitioner before the Court below, has been examined as
witness in support of her claim for maintenance, whereas to revert such claim,
the present petitioner, as opposite party, has laid evidence of himself only.
It is found from the evidence of both the parties that the marriage of the
petitioner and the respondent is an admitted position. This is also an admitted
position that they have a minor child, parented by them. It is also an admitted
position that at present the respondent/wife has been living separately in her
parental house and no maintenance is provided to her and to her minor child by
the present petitioner/husband.
The judgment of the learned Court below, granting monthly maintenance
allowance to the respondent and her minor child, has been challenged basically
on the ground that the petitioner/husband has no income of his own and he is a
psychiatric patient. It has further been submitted that the petitioner being a
psychiatric patient, is not able bodied person to maintain his wife and child.
The learned Court below has held that the petitioner is a able bodied person
although in his examination-in-chief, the petitioner, as witness, has stated that
he is having psychiatric problem yet to substantiate such fact, no documentary
evidence is found to have produced before this Court to convince the Court that
such a disease exists in him, which is, however, required. In the absence of any
specific materials to show the existence of mental ailment of the
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petitioner/husband disenabling him to earn his livelihood, this Court is unable to
accept such a plea taken by the petitioner/husband in this revision petition.
Therefore, in the absence of any convincing and acceptable evidence in respect
of mental ailment of the petitioner, he cannot be said to be a person unable to
maintain his wife/respondent.
On perusal of evidence as a whole, the petitioner/husband appears to be an
able bodied person.
That apart, it has come out from the record and even to be an admitted position
that the petitioner had fathered a child through the respondent/wife, which
implies his ability to maintain them.
The learned counsel for the petitioner has also submitted another ground that
the respondent/wife is not entitled to grant monthly maintenance on the ground
that she has deserted the company of the petitioner herself and, therefore, in
accordance with the provisions of Section 125(4) of the Cr.P.C., she is not
entitled to grant monthly maintenance. However, to substantiate such a plea,
there is no evidence laid; rather, the evidence laid by the respondent/wife
appears to be believable that she had to leave the house of the petitioner on
being subjected to torture by the family of the petitioner/husband.
That being so, this Court finds no merit in the revision petition. Accordingly, the
same is dismissed.
The revision petition is disposed of accordingly.
Send back the LCR.
JUDGE
Comparing Assistant
