Abdur Rahman vs Ruhana Begum And Anr
2022 Latest Caselaw 4063 Gua

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GAHC010211772022




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

                                Case No. : Crl.Pet./1066/2022

            ABDUR RAHMAN
            S/O AZIZUR RAHMAN
            VILL- BAKARSHAL
            P.S. JOBAINPUR
            DIST. KARIMGANJ



            VERSUS

            RUHANA BEGUM AND ANR
            W/O ABDUR RAHMAN
            D/O ABDUL LATIF
            VILL- BADEMAIJ
            P.S. BADARPUR
            DIST. KARIMGANJ, ASSAM

            2:STATE OF ASSAM
            TO BE REP. BY THE PP
            ASSA

Advocate for the Petitioner   : MR. A AHMED

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 21-10-2022 Page No.# 2/10

Heard Mr. A. Ahmed, learned counsel for the petitioner and Mr. M.P. Goswami, learned counsel for the State respondent no.1.

2. By filing this criminal petition under Section 482 read with Section 397 Cr.P.C. read with Article 227 of the Constitution of India, the petitioner, who is the estranged husband of the respondent no. 1, has prayed for setting aside the judgment dated 23.03.2022, passed by the learned Addl. Sessions Judge, Karimganj in Crl. Revision No. 32(1)/2018, thereby dismissing the appeal and affirming the judgment dated 16.02.2018, passed by the learned Chief Judicial Magistrate, Karimganj in Misc. Case No. 224/2015, thereby allowing monthly maintenance of Rs.1,500/- (Rupees One thousand five hundred only) per month under Section 125 Cr.P.C. to the respondent no. 1.

3. The learned counsel for the petitioner has referred to the grounds on which this petition is presented and it has been submitted that the petitioner was not in a capacity to pay any maintenance as he was totally dependent on his father for his own livelihood. It was submitted that the Court below had erroneously presumed that the petitioner was able to pay maintenance. By referring to the evidence-in-chief of DW-1, i.e. the father of the petitioner, it has been submitted that the petitioner was not mentally sound as such the learned Court below ought to have taken note of such evidence and ought to have directed an enquiry to be made to ascertain as to whether or not the petitioner was of unsound mind. Hence, it is submitted that the judgment was vitiated by non-consideration of the plea that the petitioner was of unsound mind. It is, therefore, submitted that this was a fit case to set aside the judgment of the learned Courts below and direct that the trial Court to first Page No.# 3/10

ascertain (a) whether the petitioner had paying capacity, and (b) whether or not the petitioner was of unsound mind.

4. It has also been submitted that the petitioner had lodged a complaint, which was sent to Badarpur P.S. for investigation and Badarpur P.S. Case was registered, and tried as G.R. Case No. 2055/2015 under section 498A of the IPC. The Court of Judicial Magistrate, First Class-II, Karimganj, by judgment dated 21.10.2016, had acquitted the petitioner and in para-7 of the said judgment, the Court had recorded a finding that due to mental illness of the petitioner, the respondent no. 1 went back to her father and is not willing to continue matrimonial relation with the petitioner. The observations of the learned trial Court in para-7 of the judgment of G.R. Case No. 2055/2015 is quoted below:-

"7. From the above evidences, I do not find any implicating statement against accused. Rather, the evidences indicate that due to mental illness of accused, the complainant went back to her father and is not willing to continue matrimonial relation with the accused."

5. In support of his submissions, the learned counsel for the petitioner has referred to the case of Bolin Bora v. State of Assam, Crl. Appeal No. 205/2007, decided by this Court on 04.02.2013, and reported in MANU/GH/0043/ 2013.

6. Examined the materials available on the record. In this case, the respondent no. 1, by filing a case under Section 125 Cr.P.C., claimed maintenance. As indicated herein before, by judgment and order dated 16.02.2018 passed by the learned Chief Judicial Magistrate, Karimganj in Misc. Case No. 224/2015, the petitioner was ordered to pay maintenance of Rs.1,500/- per month to the respondent no. 1 from the date of the order.

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7. The two points on which the learned counsel for the petitioner had deliberated are as follows, viz., (a) whether the petitioner had paying capacity, and (b) whether or not the petitioner was of unsound mind. No other point was urged by the learned counsel for the petitioner.

Whether or not the petitioner was of unsound mind:

8. It is seen that in the proceeding of Misc. Case No. 224/2015, the evidence-in-chief and cross-examination of the respondent no. 1, i.e. the first party, was recorded on 30.11.2017, and discharged. The petitioner did not give any evidence. One Azizur Rahman, the father of the petitioner had examined himself as DW-1 on 19.01.2018, and he was cross-examined and discharged on the same day. The DW-1 had stated in his evidence-in-chief that the petitioner was a mental patient and that his condition had deteriorated; that he was not in a condition to work; that he was dependent on him; and that he was not in a condition to provide separate maintenance to the respondent no. 1. However, no document was proved to establish that the petitioner was of unsound mind or a mental patient or an insane or a lunatic. Moreover, the judgment dated 21.10.2016, passed by the learned Judicial Magistrate First Class-II, Karimganj in G.R. Case No. 2055/2015 was also not exhibited by the DW-1. Thus, there is nothing on record to show that the petitioner had taken a plea that he was of unsound mind. It is not in dispute that the petitioner did not appear before the Court at the time of evidence and therefore, there was no occasion for the Court below to have reasons to believe that the petitioner was a mental patient or an insane or a lunatic. Therefore, the Court is unable to accept that there was any miscarriage of justice merely because the learned Chief Judicial Magistrate, Karimganj did not adopt the procedure as envisaged Page No.# 5/10

under Section 328 Cr.P.C.

9. Along with this petition, the petitioner has annexed medical prescriptions dated 11.07.2009 (two copies), 10.02.2016 (three copies), and 27.02.2016 (two copies) (Annexure-V series). In the prescription dated 27.02.2016, the word "schizophrenia" is written in hand-writing, without any counter-signature of the doctor to the said writing. The doctor who had signed the prescription was not examined a witness. The said prescriptions were neither produced at the time of examining the DW-1 nor those were produced at the appellate stage and therefore, the said prescriptions have been produced now for the first time before this Court. Thus, at no stage, including in the present petition, any attempt has been to demonstrate that the medicines prescribed were for the treatment of a mental patient or an insane or a lunatic. As per the prescription dated 27.02.2016, the medicines were prescribed for 40 days only. Thus, the said prescription dated 11.07.2009, 10.02.2016, and 27.02.2016 (Annexure-V series) merely establishes that on 19.01.2018, when DW-1 was examined, the petitioner was not on any medication whatsoever.

10. The learned counsel for the petitioner has not been able to demonstrate that merely because the DW-1 had made a statement in his evidence-in-chief that the petitioner was a mental patient, without exhibiting any document, it was still incumbent for the learned Chief Judicial Magistrate to exercise power under Chapter XXV of the Cr.P.C. to presume that the petitioner was of unsound mind, or a mental patient, or an insane, or a lunatic.

11. The learned counsel for the petitioner has not been able to show that the oral evidence by father that his son is of unsound mind is in any way admissible in evidence and proves that the petitioner was of unsound mind.

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12. Moreover, in this case, the proceeding was under Chapter-IX of the Cr.P.C., whereby the respondent no. 1 was claiming maintenance under Section 125 Cr.P.C. Therefore, although the petitioner was tried under Section 125 Cr.P.C., but it cannot be said that the petitioner was "accused" of any penal offence.

13. The learned counsel for the petitioner could not demonstrate that trial of an offence allegedly committed by the petitioner within the meaning of Section 498A I.P.C., being G.R. Case No. 2055/2015 was not a trial of a criminal offence under the Penal Code, but it was a judgment rendered in exercise of matrimonial jurisdiction. This appears to be of some relevance for the purpose of Sections 41, 42 and 43 of the Evidence Act, 1872. The said provisions are quoted below:-

"41. Relevancy of certain judgments in probate, etc., jurisdiction. - A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof --

That any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

That any legal character, to which it declares any such person to be entitled, accrued, to that person at the time when such judgment, order or decree declares it to have accrued to that person;

That any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;

And that anything to which it declares any person so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

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42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41 - Judgments, order or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.

43. Judgments, etc., other than those mentioned in sections 40, 41 and 42, when relevant.- Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act."

14. Thus, in the present case in hand, it was not one of the point of determination in the judgment and order of G.R. Case No. 2055/2015 as to whether or not the petitioner was suffering from any mental illness. Therefore, although the genesis of GR Case No. 2055/2015 lies in matrimonial dispute between the petitioner and the respondent no. 1, the trial of the petitioner in the said case cannot be said to be a trial under matrimonial jurisdiction of Court as envisaged under Section 41 of the Evidence Act, 1872. Moreover, the learned counsel for the petitioner has not been able to demonstrate that the observations recorded in para-7 of the judgment dated 21.10.2016 in G.R. Case No. 2055/2015 was a finding recorded after evidence was led on the point that the petitioner was suffering from any mental illness because no witness was examined in the said proceeding on behalf of the petitioner and no document was exhibited by the petitioner's side in the said case. Thus, observation made in para-7 of the said judgment is not acceptable as a conclusive proof that the petitioner was mentally ill. Thus, by applying the provision of Section 43 of the Evidence Act, 1872, the said judgment in G.R. Case No. 2055/2015 must be held to be irrelevant.

15. It may further be stated that the learned counsel for the Page No.# 8/10

petitioner has not been able to demonstrate that without exhibiting the judgment dated 21.10.2016 in G.R. Case No. 2055/2015, the trial Court, i.e. Chief Judicial Magistrate, Karimganj, adjudicating Misc. Case No. 224/2015 could have taken judicial notice of the judgment dated 21.10.2016 in G.R. Case No. 2055/2015.

16. The Court is unable to accept the proposition that even without examining the petitioner, his father, i.e. the DW-1 could have proved only by way of his oral statement that the petitioner was of unsound mind. The doctor's prescription dated 27.02.2016, where some medicines were prescribed to the petitioner for 40 (forty) days is not sufficient for this Court to return a finding that the petitioner was a mental patient or an insane or a lunatic on 19.01.2018, i.e. the date of evidence when DW-1 was examined, cross-examined and discharged and/or on 16.02.2018, the date when judgment was delivered in Misc. Case No. 224/2015.

17. Thus, on point no. (b) as raised by the learned counsel for the petitioner, in light of the discussions above, the Court is inclined to hold that the impugned judgment passed by the learned trial Court and the learned lower appellate Court were not vitiated by any error whatsoever in not taking cognizance of the plea that the petitioner was of unsound mind, or a mental patient, or an insane, or a lunatic. The doctor's prescriptions dated 11.07.2009 (two copies), 10.02.2016 (three copies), and 27.02.2016 (two copies), which are now produced as Annexure-V series to this petition has not been proved by the petitioner in accordance with law. Therefore, when the trial has not vitiated on this count, this is not a fit and proper case to set aside the concurrent finding vide (i) judgment dated 16.02.2018, passed by the learned Chief Judicial Page No.# 9/10

Magistrate, Karimganj in Misc. Case No. 224/2015; and (ii) judgment dated 23.03.2022, passed by the learned Addl. Sessions Judge, Karimganj in Crl. Revision No. 32(1)/2018.

Whether or not the petitioner has capacity to pay maintenance:

18. The learned counsel for the petitioner has not been able to demonstrate that the paying capacity of the husband is a sine qua non before maintenance is awarded by the Court. Rather, it is well settled that the estranged wife would be entitled to a reasonable maintenance which should be somewhat equal to the living standard of the husband. There is nothing on record to show that the quantum of maintenance of Rs.1,500/- per month is exorbitant and excess of what is required towards living expenses of the petitioner. Therefore, no case is made out to interfere with the quantum of maintenance of Rs.1,500/- awarded by the learned trial Court.

19. Therefore, as the petitioner has not been able to prove that he is not an able bodied man, it cannot be presumed that the petitioner does not have the capacity to pay maintenance of Rs.1,500/- per month to the respondent no. 1. Therefore, the said plea also fails.

20. Thus, in light of the discussions above, the Court does not find any merit in this case and therefore, this criminal petition stands dismissed at the 'motion' stage, without issuing any notice on the respondents.

21. The Registry shall transmit a copy of this order to the Court of the learned Chief Judicial Magistrate, Karimganj to make this order a part of the record of Misc. Case No. 224/2015, under Section 125 Cr.P.C., decided on 16.02.2018.

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JUDGE

Comparing Assistant