Smti. Junu Rani Das vs Ankur Das
2022 Latest Caselaw 3274 Gua

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GAHC010042852020




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

                               Case No. : Crl.Rev.P./79/2020

            SMTI. JUNU RANI DAS
            D/O SRI TARANI DAS, VILL-KHARJARA, P.O.-CHOWK BAZAR, P.S.-
            NALBARI, DIST-NALBARI, ASSAM, PIN-781334



            VERSUS

            ANKUR DAS
            S/O LATE SUREN DAS, VILL-JAMTOLA (NEAR MADHYA PANDURI HIGH
            SCHOOL), P.O.-RANGIA, P.S.-RANGIA, DIST-KAMRUP, ASSAM, PIN-781354



Advocate for the Petitioner   : MR. S N KRISHNATRAYA

Advocate for the Respondent : MD M S ALI

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

Date of hearing : 21.07.2022 Date of verdict : 30.08.2022

VERDICT (CAV) Page No.# 2/8

Heard Mr. S. N. Krishnatraya, learned counsel for the petitioner. Also heard Mr. M. S. Ali, learned counsel for the respondent.

2. In this revision petition, under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the petitioner, namely, Smti Junu Rani Das, has challenged the legality, propriety and correctness of the judgment and order, dated 03.01.2020, passed by the learned Principal Judge, Family Court,

Nalbari, in F.C. (Criminal) Case No. 250/2019 (old Case No. 177m/2018).

3. It is to be mentioned here that vide impugned judgment and order dated 03.01.2020, the learned Principal Judge, Family Court, Nalbari, has directed the respondent to pay maintenance to the petitioner @ Rs. 1800/- per month, to the petitioner and @ Rs. 700/- per month, to her minor son, who is living with her, all total Rs. 2,500/- per month, and further directed the respondent to pay a sum of Rs. 5,000/- as one time cost of the proceedings to the petitioner.

4. The factual background, leading to filing of the present revision petition, is briefly stated as under:-

"The petitioner got married with the respondent on 15.10.2015, as per Hindu rites and customs and they were blessed with a baby boy (3 years old). Thereafter, the respondent, on instigation of his mother and sister, subjected the petitioner to both physical and mental cruelty demanding a Page No.# 3/8

sum of Rs. 50,000/- initially, and later on, a sum of Rs. 4,00,000/- and as she failed to met their demand, they had driven her out of the matrimonial home on 21.04.2017, and despite being a Teacher at 485 Kenduguri L.P. School and drawing a sum of Rs. 40,000/- to 42,000/- per month, and despite having cultivable land of 10 to 15 Bighas, the respondent has not been paying maintenance to the petitioner and her minor son. Thereafter, the petitioner approached the learned Court below by filing a petition, under Section 125 of the Code of Criminal Procedure, for granting maintenance to her and her son and upon the said petition, the learned Court below, after hearing both the parties, have directed the respondent to pay maintenance to the petitioner, as indicate above."

5. Being highly aggrieved, the petitioner approached this Court on the ground that the impugned judgment and order suffers from jurisdictional error and nonest in the eye of law and that the impugned judgment and order was passed arbitrarily by non-application of mind and without appreciating the materials available on record, and that the learned Court below has failed to consider that the monthly income of the respondent is about Rs. 40,000/- to Rs. 42,000/- per month, and the same could not be rebutted and that the learned Court below has fixed the quantum of maintenance in lower side, and that considering the standard of living of respondent and the evidence adduced by the petitioner, which remained un-rebutted, in cross-examination and the learned Court below had failed to take into account the same and therefore, the impugned judgment and order suffers from manifest illegalities, and therefore, it is contended to allow this petition.

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6. The respondent, Shri Ankur Das, has filed his affidavit-in-opposition and the denied the assertion made in the petition. It is also stated that the petitioner has been serving as a TET Teacher in Patshala and he never demanded any money from the petitioner and never subjected her to physical and mental cruelty and he also never demanded a sum of Rs.50,000/ and also Rs. 4 Lakhs from her and that the petitioner has filed one case under Section 406 IPC before the learned Chief Judicial Magistrate, Nalbari, and on the strength of search warrant issued by the learned Chief Judicial Magistrate, Nalbari, her properties were recovered by Police and handed over to her and that he is still willing to lead a conjugal life with petitioner and the decision of the learned Court below in awarding maintenance @ Rs. 2,500/- per month to the petitioner and her son is absolutely correct and the same requires no interference of this Court and therefore, it is contended to dismiss the petition.

7. Thereafter, the petitioner has submitted an additional-affidavit and the respondent also filed his reply to the said additional-affidavit.

8. Mr. S. N. Krishnatraya, the learned counsel for the petitioner, submits that the quantum of maintenance, so awarded by the learned Court below, is significantly in lower side and the same is not sufficient even to manage two square meal a day for her and her son and that the learned Court below has failed to consider that the income of the respondent is about Rs. 40,000/- to Rs. 42,000/- per month, and he has been serving as a Teacher and besides, he has landed property and as such, the impugned judgment and order, passed by the learned Court below, suffers from manifest illegality and impropriety and it Page No.# 5/8

requires interference of this Court and the quantum of maintenance is required to be enhanced.

9. On the other hand, Mr. M. S. Ali, learned counsel for the respondent, submits that the learned Court below has not committed any illegality or impropriety in granting maintenance to the petitioner and her son @ Rs. 2,500/- per month and as such, the impugned judgment and order requires no interference of this Court and therefore, it is contended to upheld the same.

10. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the impugned judgment and order, dated 03.01.2020.

11. It appears that the case of the petitioner lies in a very narrow compass. The only grievance of the petitioner is quantum of maintenance so awarded by the learned Principal Judge, Family Court, Nalbari. In view above, let it be seen how the learned Court below had dealt with the issue of quantum of maintenance in the impugned judgment and order. The relevant paragraph, by which the learned Court below has dealt with the quantum of maintenance, is reproduced below:-

"Now, coming to the point of ascertaining the quantum of maintenance to be allowed, it is usually the income of the second party that he has to be considered by the court first then the social status of the parties concerned. In the present case, the 1st party though claimed that the 2nd party is a School Teacher, drawing a salary of Rs. 40,000/- to Rs. 42,000/- but, then Page No.# 6/8

1st party has failed to support her claim with salary certificate of the second party exhibited in evidence. Considering the basic principle behind the enactment being prevention of vagrancy and destitution resulting from negligence or refusal to provide maintenance allowance as interim measure, the second party is directed to pay a sum of Rs. 1800/- in maintenance allowance per month to the first party and Rs. 700/- to her 3 year old minor son, who is living with the 1 st party." And accordingly, the learned Court below has ordered the respondent to pay maintenance to the petitioner.

12. Thus, it appears that at the time of hearing before the learned court below, the petitioner had failed to produce any documentary proof to establish that the respondent is a School Teacher and that he had been drawing salary @ Rs, 40,000 to 42,000/ per month. But, here in this case, the petitioner has submitted additional affidavit enclosing the Salary Certificate of the respondent, issued by Block Elementary Education Officer, Bajali Block, Patshala, as Annexure-'C'. Perusal of the same reveals that in the month of January 2020, the respondent has been drawing a sum of Rs. 28,772/- and after deduction, his take home salary is Rs. 25,734/-.

13. Thereafter, the respondent also filed affidavit-in-opposition, wherein, he admitted that he has been serving as TET Teacher at Patshala, but he denied that he has the possession of 15 bighas of land from which he used to sell huge quantity of rice every year. The respondent has submitted his additional affidavit-in-reply, wherein, he enclosed his salary statement as Annexure-'A', which reveals that his take home salary is Rs. 30,969/- and after deduction of a sum of Rs. 3,640/-. However, in his additional affidavit-in-reply, he stated that he had availed personal loan, vehicle loans etc. and he has the burden of re- payment of the said loans also.

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14. Thus, from the petition and additional-affidavit submitted by the petitioner and also the affidavit-in-opposition and the additional affidavit-in-reply, it appears that the respondent has been serving as a TET Teacher and his take home salary is Rs. 30,969/- in the month of April, 2022.

15. On the other hand, it appears from the petition and the affidavits submitted by the petitioner that she has no source of income and she is totally dependent upon her parents.

16. While dealing with the factors to be considered at the time of fixing the quantum of maintenance, Hon'ble Supreme Court in Rajnesh Vs. Neha & Anr. [Criminal Appeal NO. 730 OF 2020 (Arising out of SLP (Crl.) No. 9503 of 2018)] held that:-

"A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. (Chaturbhuj vs. Sita Bai : (2008) 2 SCC 316.)

The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort."

17. Application of the ratio, laid down in the aforementioned case, would reveal that the amount, so awarded by the learned Principal Judge, Family Page No.# 8/8

Court, Nalbari, is not commensurate with the financial status of the respondent, and the standard of living, which she was accustomed to in her matrimonial home. With a meagre amount of Rs. 2,500/- only, the petitioner and her son, whose schooling might have started in the meantime, would certainly be difficult for the petitioner to manage even two square meals a day, not to speak of leading a decent life. She is entitled to lead and maintain her life at the same standard which she was accustomed to in the matrimonial home.

18. Having regard to above, and also having regard to the financial status as well as liabilities of the parties, this Court is of the view that a sum of Rs. 5,000/- (Rupees Five Thousand) per month to the petitioner and Rs. 2,500/- (Rupees Two Thousand and Five Hundred) per month to the son of the petitioner, will be just and proper amount. Accordingly, the impugned judgment and order passed by the learned Court below stands set aside and quashed. The respondent is directed to pay maintenance to the petitioner and her son at the rate indicated above.

19. In terms of above, this revision petition stands disposed of.

JUDGE

Comparing Assistant