Mukleshur Rahman vs Mustt. Narjida Hasan And Anr
2022 Latest Caselaw 2589 Gua

                                                                     Page No.# 1/7

GAHC010202562019




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

                                Case No. : Crl.Rev.P./388/2019

            MUKLESHUR RAHMAN
            S/O LATE ASHRAF ALI, R/O KATANIGAON, P.S.-NAGAON, DIST-NAGAON,
            ASSAM



            VERSUS

            MUSTT. NARJIDA HASAN AND ANR.
            D/O MD. KHAIRUJ ZAMAN, R/O AMINPATTY, R.D.M. ROAD, P.S.-SADAR,
            DIST-NAGAON (ASSAM)

            2:THE STATE OF ASSAM
             (NOTICE THROUGH THE PUBLIC PROSECUTOR
            ASSAM

Advocate for the Petitioner   : MR A SHARMA

Advocate for the Respondent : PP, ASSAM (R2)

Page No.# 2/7

-BEFORE-

                  HON'BLE MR. JUSTICE ROBIN PHUKAN



                       Advocate for the Petitioner     : Mr. A. Sharma.

                       Advocate for the respondents          : Mr. B. Islam.


                              Date of Hearing        : 01.06.2022.
                                                 &
                             Date of Verdict (CAV)     : 30.07.2022.




                           VERDICT (CAV)

Heard Mr. A. Sharma, learned counsel for the petitioner and also heard Mr. B. Islam, learned counsel for the respondents.

2. In this petition, under Section 397/401 of the Code of Criminal Procedure, 1973, the petitioner, namely, Mukleshur Rahman has challenged the legality, propriety and correctness of the judgment and order, dated 23.05.2019 passed by the learned Addl. Sessions Judge No. 3, Nagaon in Crl. A. No. 12(N)/18 and the order, dated 27.02.2018 passed by the learned JMFC, Nagaon in D.V. Case No. 498/2015, under Section 12 of the Domestic Violence Act.

3. It is to be noted here that vide the impugned order, dated 27.02.2018, the learned JMFC, Nagaon has directed the petitioner to pay a sum of Rs.4,000/- per month as the maintenance to the respondent and also to pay a sum of Rs.

Page No.# 3/7

10,000/ (Rupees ten thousand), as compensation, and vide impugned judgment and order, dated 23.05.2019, the learned Addl. Session Judge No.3, Nagaon has upheld the order of the learned JMFC, Nagaon.

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

"The respondent had filed a complaint against the petitioner and his family members, under Section 12 of the Domestic Violence Act alleging inter-alia amongst others that they have tortured her both physically and mentally. Upon the said complaint, the learned Court below has issued notice to the petitioner, on receipt of which the petitioner and others entered appearance and file written statement on 06.06.2016, before the learned Court below and thereafter, hearing advocates of both the sides, the learned Court below was pleased to pass an order directing the petitioner to pay a sum of Rs.3,000/-only per month to the respondent as interim relief till disposal of the petition. Being aggrieved, the petitioner on 02.08.2016 filed an application for alteration of the interim order, dated 06.06.2016. But after hearing both the parties, the learned Court below was pleased to dismiss the same on 30.11.2016. Thereafter, the petitioner had filed one appeal before the learned Addl. Session Judge No. 3 and the same was partly allowed by the learned Court below directing the petitioner to pay a sum of Rs.2,000/- as interim maintenance. Thereafter, on default of the petitioner, an ex-parte order was passed by the learned Court below directing the petitioner to pay a sum of Rs.4,000/- per month vide order, dated 23.05.2019 and also he was directed to pay a sum of Rs.10,000/- being the compensation. Then, being aggrieved by the Page No.# 4/7

aforesaid order, the petitioner had preferred an appeal, being Crl. A. 12/2018, before the learned Addl. Sessions Judge No. 3, and after hearing both the parties, the learned Addl. Sessions Judge No.3 was pleased to dismiss the same vide judgment and order, dated 23.05.2019.

5. Being highly aggrieved, the petitioner approached this court by filing the present petition on the ground that the impugned order was passed without applying judicial mind and as such, the same is illegal, arbitrary and liable to be set aside and that the learned Court below had failed to consider the materials available on record and arrived at an erroneous findings that the impugned order is passed in contravention of principles of natural justice and opportunity of being heard is denied to the petitioner and also the learned Court below has failed to consider the aspect that the petitioner is a daily wage earner and he has no fixed income.

6. Mr. A. Sharma, learned counsel for the petitioner submits that the petitioner is a daily wage earner and with his meager income he is unable to comply with the direction of the learned Court below to pay maintenance to the respondent @ Rs.4,000/- per month and therefore, Mr. Sharma, the learned counsel for the petitioner contended to set aside the impugned order.

7. On the other hand, Mr. B. Islam, learned counsel for the respondent submits that the learned Court below by passing the impugned order after considering all aspects and arrived at a just findings and that a sum of Rs.4,000/- per month, in present day context, is not sufficient for the respondent to maintain herself and as such, no interference of the impugned order is called for, here, in this case.

Page No.# 5/7

8. Having heard the submission of learned Advocates of both the sides, I have carefully gone through the petition and the documents placed on record and also the impugned judgment and order, dated 23.05.2019 passed in Crl. A. 12/2018, by the learned Addl. Sessions Judge No. 3, Nagaon and also the impugned order, dated 27.02.2018, passed by the learned JMFC, Nagaon in D.V. Case No. 498/2015 under Section 12 of the Domestic Violence Act.

9. It appears that the dispute in this petition relates only to the quantum of maintenance. It also appears that while passing the final order, dated 27.02.2018 by the learned JMFC, Nagaon directed the petitioner to pay monthly maintenance @ Rs.4,000/- per month with effect from the date of passing of the order, i.e. from 27.02.2018. Besides, the learned Court below also directed the petitioner to pay compensation @ Rs.10,000/- per month under Section 12 of the Domestic Violence Act. The learned Court below also found that the petitioner is a well established contractor and has the business of timber and he enjoyed good economic condition and he has sufficient agricultural land and a broiler chicken farm, and he also earn handsome amount by producing rice, vegetables and fruits and he has also other business in his name and his monthly income is around 60,000/-. But, the same having not been proved, the learned court below had considered the status of the parties, the income admitted by the petitioner and the present day cost of living and arrived at a finding that a sum of Rs.4,000/- per month, will be the just amount for maintenance of the respondent. It may be mentioned here that the respondent is graduate in Arts and she has no income of her own.

10. It is to be noted here that the petitioner had defaulted in contesting the Page No.# 6/7

case, for which ex-parte order has been passed and as such, the evidence so adduced by the respondent in respect of his income remained un-reburted and undisputed. But the learned court below had fixed the quantum on the basis of the status of the parties, the income admitted by the petitioner and the present day cost of living, not on the basis of income so described by the respondent in her evidence.

11. It also appears from the impugned judgment and order passed by the learned Addl. Session Judge No.3 that while passing the aforesaid order, the learned Court below had also considered that though the respondent in her evidence has stated that the income of the petitioner is 60,000/- from all sources, but no evidence could be adduced by her to substantiate her claim, however, the petitioner being an able bodied person has a normal duty to maintain his wife and as such, grant of Rs.4,000/- as maintenance to the respondent appears to be quite justified and the compensation amount also appears to be quite reasonable to her in view of the physical and mental torture inflicted upon her.

12. I have carefully considered the grounds so assigned by the learned Court below while awarding maintenance @ Rs.4,000/- per month to the respondent and also the grounds for affirming the same by the learned Addl. Sessions Judge No. 3, Nagaon and also considered the submission of learned Advocates of both sides and in view of the facts and circumstances on the record, the amount so directed to be paid by the petitioner, appears to be not unreasonable or unjustified inasmuch as, the petitioner has not contested the case before the court of learned JMFC, Nagaon, And as such the evidence of the respondent in respect of his income remains unreburted. But he had unsuccessfully challenged Page No.# 7/7

the same before the court of learned Addl. Sessions Judge, No.3, Nagaon. Moreover, it is an admitted position that the petitioner is an able bodied person and in the present day context, a sum of Rs.4,000/- is quite insufficient to manage even a two square meal a day, not to speak of leading a luxurious life.

13. Therefore, this Court is of the view that the impugned order passed by the learned JMFC in D. V. Case No. 498/2015, under Section 12 of the Domestic Violence Act, dated 27.02.2018 and also the impugned judgment and order passed by the learned Addl. Session Judge No. 3, in Crl. A. 12/2018 suffers from no infirmity or illegality requiring any interference of this Court.

14. In the result, I find no merit in this revision petition and the same stands dismissed. Send down the LCRs to the learned Court below. Interim order, if any, granted earlier stands vacated. The parties have to bear their own cost.

JUDGE

Comparing Assistant