Md. Shajahan Ali vs The State Of Assam And Anr
2021 Latest Caselaw 3038 Gua

                                                                        Page No.# 1/4

GAHC010141022018




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

                              Case No. : Crl.Rev.P./235/2018

             MD. SHAJAHAN ALI
             S/O- PIYAR ALI, R/O- VILL- AMBARI UNDER CHAYGAON P.S., DIST-
             KAMRUP (R), ASSAM, PIN- 781137

             VERSUS

             THE STATE OF ASSAM AND ANR.
             REP. BY P.P., ASSAM

             2:MUSSTT. REJINA BEGUM
              D/O- LT TOYAB ULLAHA
              R/O- VILL/MOUZA- ALUBARI UNDER SORBHOG P.S.
              DIST- BARPETA, ASSAM, PIN- 78131

Advocate for the Petitioner : MR. N AHMED
Advocate for the Respondent : PP, ASSAM

                                  BEFORE
                 HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

                                        ORDER

23-11-2021

Mr. N. Ahmed, learned counsel represents the petitioner. Ms. P. Talukdar, learned counsel represents respondent No. 2. Ms. S.H. Bora, learned Additional Public Prosecutor, represents for the State 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 Page No.# 2/4

and order, dated 05-04-2018, passed by the learned Principal Judge, Family Court, Barpeta, in F.C. (Crl.) No. 383/2015, under Section 125 of the Cr.P.C., granting monthly maintenance allowance @ 2000/- per month to the respondent/wife to be paid by the petitioner/husband from the date of the order, i.e., 05-04-2018.

I have perused the petition along with annexures furnished therewith including the copy of the impugned judgment and order.

I have heard the learned counsel aforementioned.

The fact of the case, as appears from the materials on record, is that the respondent No. 2 got married with the petitioner in the year 2011 as per Shariat by executing a registered Kabinnama and immediately after the marriage, both the parties started to live together as husband and wife in a rented house, located at Barpeta Road.

The first party/respondent, in her application as well as in her evidence contended that at the time of leaving her by the present petitioner, they were living in a house provided to them by her father. However, after about 7 months of their stay together, the petitioner was called back by his family members, and thereafter, he did not go back to the company of the respondent and live together to perform their conjugal responsibilities. The petitioner has filed written statement as well as led evidence in the Court below to the effect that he had tried to bring back the respondent/wife to his company although the respondent/wife refused to come to his company. As against such evidence, there is also statement in the petition as well as in the evidence led by the respondent/wife that on being called by the petitioner, she went to his house, but her mother-in-law refused to allow her to enter in the house and, therefore, she came back disheartened.

Page No.# 3/4

It is, now, 9 years plus that the petitioner and the respondent/wife are living separately and no maintenance is allegedly provided to the respondent/wife by the petitioner in accordance with the order vide by the judgment impugned in this application.

The learned counsel for the petitioner, referring to the provision of Section 125(4) of the Cr.P.C., has submitted that since the respondent/wife refused to live with the petitioner/husband without there being sufficient cause, she is not entitled to any maintenance allowance.

The learned counsel for the respondent/wife, Ms. Talukdar, while resisting such submission made by the learned counsel for the petitioner, has referred to the evidence on record to press her point that the petitioner's mother did not allow her to enter in his house and, therefore, she had to come back, thereafter, the petitioner has never made any attempt to bring her back to his company. The learned counsel for the respondent has also submitted that during pendency of this petition, the petitioner has contacted second marriage. However, this Court is not inclined to take into account the submission regarding contacting a second marriage as this is not an issue before this Court for adjudication as the same being not involved in the judgment impugned in this petition.

Whatever it may be, from the contesting arguments of the parties as well as on thorough scanning of the impugned order and the basis of the findings recorded in the judgment, this Court is of the view that there is no dispute between the parties that the respondent is the wife of the petitioner. There is no dispute at the Bar that the petitioner being the husband, is bound to maintain his wife, who does not have her own source of income to maintain herself. The dispute appears to be on the sole issue that the respondent/wife refused to stay with Page No.# 4/4

the petitioner to discharge their conjugal responsibility and, therefore, as mandated by the provision of Section 125(4) of the Cr.P.C., she is not entitled to grant of maintenance allowance. However, the evidence of PW1, i.e., the respondent/wife shows that on being desired by her husband/petitioner, she went to his house with a view to stay with him, but she was not allowed to enter in the house by her mother-in-law following which she had to come back. Such evidence of PW1 is found to have been subscribed by PW2 and PW3 and there is no instance in the record to indicate that the evidence of PW2 and PW3 cannot be relied upon for any reason whatsoever. The credential of PW2 and PW3 are found not to have been disputed even during their cross-examination. That being so, the allegation that the respondent/wife refused to live together with the petitioner on her own and without any sufficient cause appears to have no leg to stand on it.

That apart, there is no instance in the record, even to indicate remotely that the petitioner is not an able bodied person and he cannot maintain his wife. Even if it is supposed, for the sake of argument, that the petitioner is a daily labourer, as submitted by the learned counsel for the petitioner, yet he being an able bodied person, is bound to maintain his wife.

In view of the above discussion, there appears to have no merit in this revision application. Accordingly, this criminal revision petition is disposed of on merit by way of dismissal.

The impugned judgment and order be implemented by the learned Court below. Send down a copy of this order to the learned Court below for information and necessary action.

JUDGE

Comparing Assistant