Sanowar Hussain vs The State Of Assam And Anr
2022 Latest Caselaw 4381 Gua

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GAHC010035652021




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

                                Case No. : Crl.Rev.P./69/2021

            SANOWAR HUSSAIN
            S/O LATE MOKTAB ALI SK., R/O VILL-SINGHIMARI PART-II, P.O.-
            TISTARPAR, P.S. AND DIST-DHUBRI, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:SABINA YESMIN
             D/O SAIDUL ISLAM AHMED
             R/O VILL-MADHUSOULMARI PT-II
             P.O. AND P.S.-GOURIPU
             DIST-DHUBRI
            ASSAM
             PIN-78333

Advocate for the Petitioner   : MR. A RAHMAN

Advocate for the Respondent : PP, ASSAM




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                          ORDER

Date : 11-11-2022

Heard Mr. A.R. Rahman, the learned counsel for the petitioner. Also heard Mr. K.K. Das, Page No.# 2/4

learned Additional Public Prosecutor, Assam on behalf of respondent No. 1, who is a formal party and Mr. S. Hoque, learned counsel for the respondent No. 2.

2. This is an application under Section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), challenging the Judgment & Order dated 11.01.2021 passed by the Principal Judge, Family Court at Dhubri in connection with F.C. Misc. Case No. 459/2018 (arising out of Misc. Case No. 91/2018).

3. It is submitted on behalf of the petitioner 'X' that the Principal Judge of the Family Court has committed grave error, both in law as well as in facts. An unreasonable order was passed by the Court below directing the petitioner 'X' to pay an amount of Rs. 8,000/- as monthly maintenance from the date of filing of the petition i.e. from 08.03.2018 to the respondent No. 2 - 'Y'. Dowry demand has been vehemently denied by the petitioner. On the contrary the petitioner has alleged that the respondent No. 2 has deserted him without any valid reason. Earlier on several occasions also the respondent No. 2 used to go to her parental home and the petitioner 'X' used to bring her back. The respondent No. 2 insisted that the petitioner should stay in her parental home as 'Ghar Jamai' to which the petitioner did not agree.

4. It is contended that the matter was fixed for appearance on 11.01.2021 but without following proper procedure the impugned judgment and order was passed by the learned Court, debarring the petitioner from adducing defence witnesses in his favour. The petitioner's case was not adjudicated on merits. The petitioner has prayed to set aside the impugned judgment and order.

5. This Court vide Order dated 03.03.2021 directed the petitioner to produce his salary certificate which has been produced by the petitioner. The learned counsel for the respondent has submitted that the Trial court has not erred and has given a well reasoned decision. The respondent has prayed to reject the petition in limine.

6. I have perused the judgment and order impugned by the petitioner. The respondent wife initiated the proceeding registered as F.C. Misc. Case No. 459/2018 by filing a petition under Section 125 Cr.P.C. contending inter alia that her marriage was solemnised with the petitioner on 24.08.2017 as per Muslim 'Shariat'. From the threshold of her marriage she was Page No.# 3/4

subjected to cruelty to meet the petitioner's illegal demand of dowry and she was compelled to lodge an FIR with the police at Dhubri P.S. against the petitioner. It is submitted on behalf of the respondent that the petitioner is a teacher and has an income of more than Rs. 40,000/-.

7. The petitioner contested the proceeding initiated by the respondent. He has inter alia denied that he has subjected his wife to cruelty. He has alleged that his wife has deserted him and she is at present staying in her parental home and she is at present enjoying a luxurious and carefree life.

8. Marriage between both the parties is an admitted fact. It is also an admitted fact that the respondent is unemployed. The petitioner is a teacher. His salary statement depicts an income of more than Rs. 48,399/- (gross income) per month till the month of February, 2022. It has however being contended that the petitioner was compelled to marry the respondent under duress. It was averred through the written statement by the petitioner that the respondent demanded that he should stay in her parental home as 'Ghar Jamai'. The respondent deserted him and lodged an FIR under Section 498(A) IPC which culminated into G.R. Case No. 600 of 2018. The petitioner had to take protection by filing a petition under Section 107 Cr.P.C.

9. The respondent's evidence as PW-1 however depicts that she was subjected to cruelty by the petitioner's family members. On 21.12.2017 she had to take shelter in her parental home and she had to come alone to her parental home at night for shelter. The respondent was cross-examined at length. The evidence and pleadings depicts that the respondent is unemployed. The petitioner has a decent income. Moreover through the evidence and pleadings the respondent could prove that she had to take shelter in her parental home and the petitioner has neglected to maintain her despite the fact that she is the legally married wife of the petitioner.

10. The petitioner was aggrieved that he was not afforded an opportunity to adduce evidence. I have perused the case records. Vide Order dated 13.12.2019 the petitioner's cross-examination was deferred to another date. Thereafter Court's work got paralysed due to the pandemic. Vide Order dated 06.01.2021 the case was fixed for evidence to be adduced Page No.# 4/4

by the petitioner and finally on 11.01.2021 judgement was prepared and delivered. It is true that no reasons were recorded as to why, instead of recording the evidence of the petitioner the proceeding was fixed for judgment. At the same time, it cannot be held that the petitioner was not given an opportunity to adduce evidence. I have scanned the evidence and the judgment impugned by the petitioner. The Trial Court has given sound reasonings and after an in-depth consideration of the evidence and pleadings decision was arrived at, that the petitioner has a decent income and he will not be harassed if he has to dole out an amount of Rs. 8,000/- as monthly maintenance for his wife.

11. The evidence and pleadings of both the parties were considered. The respondent was cross-examined at length. The petitioner has failed to rebut the evidence and pleadings of the respondent. Reopening of evidence will be an abuse of the process of the Court and also harassment to the respondent who is left to fend for herself. The poignant point is that the respondent is unable to maintain herself. It has been proved that the petitioner who has a decent income has neglected to maintain his wife.

12. There is no reason to interfere with the decision of the trial Court. No case of impropriety of Judgment & Order dated 11.01.2021 in F.C. (Misc. Case No. 91/2018) could be made out.

13. This petition is devoid of merits and is hereby dismissed.

JUDGE

Comparing Assistant