Gauhati High Court
Petitioner vs The State Of Assam on 4 December, 2023
GAHC010263992022
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Petition No. 1319 of 2022
ARSHID ANOWAR HUSSAIN
S/O AZIZUR RAHMAN
R/O VILL- BALAPARA
P.O. BALAPARA
P.S. JOGHIGHOPA
DIST. BONGAIGAON, ASSAM
PIN-783382.
......Petitioner
VERSUS
1. THE STATE OF ASSAM,
REP. BY THE PP, ASSAM.
2. UMME SALMA
W/O ARSHID ANOWAR HUSSAIN
D/O ATAUR RAHMAN
VILL- BARBALA
P.O. BARBALA, P.S. HOWLY
DIST. BARPETA
ASSAM, PIN-78131
......Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Petitioner : Mr. A. Ahmed.
......Advocate.
For the Respondents : Mr. B. Sarma, Addl. P.P.
Ms. Meghali Barman,
Legal Aid Counsel.
......Advocates.
Date of Hearing : 16.11.2023
Date of Judgment : 4th December, 2023
JUDGMENT AND ORDER
Heard Mr. A. Ahmed, learned counsel for the petitioner and Ms.
M. Barman, learned Legal Aid Counsel for the respondent No. 2.
2. In this petition, under Section 482 read with Article 227 of the
Constitution of India, the petitioner namely, Arshid Anowar Hussain,
has prayed for quashing the entire proceeding of F.C. [Crl.] Case No.
104/2020, pending before the learned Principal Judge, Family Court,
Barpeta.
3. It is to be noted here that in the said proceeding, the learned
court below has directed the petitioner to pay maintenance to the
son of the respondent No. 2, @ Rs.2,000/- per month.
4. The background facts, leading to filing of this criminal petition,
are briefly stated as under:-
"The petitioner and the respondent No. 2 are husband and
wife and they got married on 20.04.2015, as per Muslim
Shariat and thereafter, they started their conjugal life in the
house of the petitioner. After some days of the marriage,
marital discord surfaced between the petitioner and the
respondent No. 2, and the petitioner used to subject the
respondent No. 2 to both physical and mental cruelty
demanding dowry and then being unable to bear the torture
meted out to the respondent No. 2, the respondent No. 2 left
the matrimonial home and taken shelter in her parental house.
Thereafter, the respondent No. 2 had approached the learned
Principal Judge, Family Court, Barpeta by filing an application
under Section 125 of the Cr.P.C for granting maintenance to
her and her son. Thereafter, the learned court below, after
hearing both the parties, vide judgment and order 18.01.2023,
had directed the petitioner to pay maintenance to the son of
the respondent No. 2 @ Rs. 2,000/- per month, but declined
to grant maintenance to the respondent No.2 as she has
already been receiving maintenance from the petitioner in a
proceeding under Domestic Violence Act, @ Rs.6000/- per
month."
5. Being aggrieved the petitioner has filed the present petition
contending to set aside the impugned judgment and order in F.C.
[Crl.] Case No. 104/2020, on the following grounds that :-
[i] the respondent No. 2 has been receiving the
maintenance @ Rs. 6,000/- per month, as per ex-parte
final order dated 18.07.2018, in C.R. Case No.
1059/2016, under Section 12 of the Protection of
Women from Domestic Violence Act;
[ii] the income of the petitioner is of Rs. 7,000/- per month
and as such, the petitioner is unable to bear the burden
of payment of Rs. 8,000 per month with just Rs.7000/
income per months being his income;
[iii] there is a chance for amicable settlement between the
parties."
6. Mr. Ahmed, learned counsel for the petitioner submits that the
petitioner has been working as a correspondent in a Batori Kakot at
Guwahati and his monthly income, as determined by the learned
Principal Judge, Family Court, Barpeta in F.C. [Crl.] Case No.
104/2020, under Section 125 of the Cr.P.C., dated 18.01.2023, is Rs.
12,000/- and that in the said proceeding under Section 125 of the
Cr.P.C., the learned court below has directed the petitioner to pay
maintenance to the son of the respondent No. 2 @ Rs. 2,000/- per
month. Mr. Ahmed further submits that in view of the ex-parte final
order dated 18.07.2018, passed by the learned Judicial Magistrate
First Class, Barpeta, in C.R. Case No. 1059/2016, the petitioner has
to pay a sum of Rs. 6,000/- and if the total income of the petitioner is
Rs. 12,000/- out of which he has to pay a sum of Rs. 8,000/- [6,000/-
+ 2,000/-] to the respondent No. 2, then nothing will remain with the
petitioner. Mr. Ahmed also submits that while determining the income
of the petitioner the learned court below might have not considered
the decision of the Hon'ble Supreme Court in the case of Rajnesh
vs. Neha and Another, reported in [2021] 2 SCC 324 and
therefore, it is contended to allow this petition by quashing the entire
proceeding of F.C. [Crl.] Case No. 104/2020, pending before the
learned Principal Judge, Family Court, Barpeta.
7. On the other hand, Ms. Barman, learned Legal Aid Counsel for
the respondent No. 2 submits that the impugned judgment and order
dated 18.01.2023, passed by the learned Principal Judge, Family
Court, Barpeta in F.C. [Crl.] Case No. 104/2020, suffers from no
infirmity or illegality, as while passing the said judgment and order
the learned court has rightly followed the direction of the Hon'ble
Supreme Court in the case of Rajnesh(Supra), and arrived at such
a finding, and as such, the impugned judgment and order requires no
interference of this Court and therefore, it is contended to dismiss the
petition.
8. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the petition as well as the
documents placed on record and also perused the impugned
judgment and order dated 18.01.2023, passed by the learned
Principal Judge, Family Court, Barpeta in F.C. [Crl.] Case No.
104/2020.
9. It appears that after hearing learned counsel for both the parties
and also considering the evidence placed before it, the learned
Principal Judge, Family Court, Barpeta has determined the income of
the petitioner @ Rs. 12,000/- per month. Further, it appears that
after considering the ex-parte final order dated 18.07.2018, passed
by the learned Judicial Magistrate First Class, Barpeta, in C.R. Case
No. 1059/2016, the learned Principal Judge, Family Court, Barpeta
has not awarded any maintenance to the respondent No. 2, however,
the learned Principal Judge, Family Court, Barpeta has directed the
petitioner to pay maintenance @ Rs. 2,000/- per month, to the son of
the respondent No. 2. It also appears that the learned court below
has followed the ratio, laid down by Hon'ble Supreme Court in the
case of Rajnesh (supra), while assessing and awarding the quantum
of maintenance to the son of the respondent No.2 and refusing to
grant maintenance to the respondent No.2, on account of receiving
of maintenance by her in the proceeding under Domestic Violence
Act.
10. On such count, this Court is of the considered view that the
opinion of the learned court below appears to be justified in the given
facts and circumstances on the record and therefore, the same
requires no interference of this Court.
11. In view of above, this Court is inclined to dismiss this petition
as there is no merit in the same. Accordingly, the same stands
dismissed. The parties have to bear their own cost. The registry shall
pay necessary fees to the learned Legal Aid Counsel, as per her
entitlement on furnishing a certified copy of this judgment and order.
JUDGE
Comparing Assistant
