Gauhati High Court
Page No.# 1/6 vs The State Of Assam And Anr on 26 May, 2023
Page No.# 1/6
GAHC010071312023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./318/2023
RUBY BEGUM @ RUBY RAFIQUE AND ANR. .
W/O- MR. SHAHEEL RAFIQUE, R/O- GD, BLOCK A, BRINDABAN
APARTMENT GANESH MANDIR PATH, BYE LANE 6, NEW GUWAHATI
TINIALI, NOONMATI, PIN- 781020, PH- 8638670793
2: ALMA SHAHEEL
D/O- MR. SHAHEEL RAFIQUE
D/O- SHRI ABBAS ALI
R/O- GD
BLOCK A
BRINDABAN APARTMENT GANESH MANDIR PATH
BYE LANE 6
NEW GUWAHATI TINIALI
NOONMATI
PIN- 78102
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM
2:RAFIQUE SHAHEEL
S/O- LATE MOBINAUT DOWLAH PERMANENT ADDRESS- C/O- NAZIA
RAFIQUE R/O- MOTIRAM BORAH ROAD (HOSPITAL ROAD)
RAFIQUE MANZIL
SADAR
NAGAON
ASSAM
PH- 03672-235668
9101097531 PRESENT ADDRESS- RAFIQUE SHAHEEL
LILANGA STREET
MOUNTAIN VIEW
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MBABANE
H100
SWAZILAND
SOUTH AFRICA
PH- 002687112237
P.S. MBABAN
Advocate for the Petitioner : MR. A K BHUYAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 26.05.2023
Heard Ms. B. Bora, learned counsel for the petitioners. Also heard
Mr. K.K. Parasar, learned Additional Public Prosecutor appearing for the
State/respondent No.1. None appears for the respondent No.2.
2. The petitioners have preferred an application under Section
482 Cr.P.C. for quashing of the order dated 27.01.2023 passed by the
Principal Judge, Family Court No. 1, Kamrup(M), Guwahati in
connection with F.C.(Crl.) Case No. 48/2019, whereby the respondent
No.2 was directed to pay interim maintenance of Rs.35,000/- per
month from the date of the order i.e. 27.01.2023.
3. The case of the petitioners is that the petitioners lodged a
case bearing F.C.(Crl.)Case No. 48/2019 under Section 125 Cr.P.C.
before the Family Court No.1, Kamrup(M), Guwahati and accordingly
notice was issued to the respondents and received accordingly. In
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spite of receipt of notice, the respondent No.2 did not appear before
the Family Court No.1, Kamrup(M) and the case was proceeded ex-
parte against him. The Family Court No.1 recorded the ex-parte
evidence of the petitioners and other witnesses and after hearing the
argument, the learned trial court was pleased to pass the final order
dated 06.09.2021 directing the respondent No.2 to pay Rs.60,000/- per
month to the petitioner No.1 as maintenance allowance from the date
of filing of the petition i.e. on 28.01.2019.
4. On receipt of the court's ex-parte order, the respondent No.2
approached before the Family Court for vacating the ex-parte
maintenance order and after hearing both sides, the ex-parte order
was vacated with a cost of Rs.7,000/- and subsequently, the date was
fixed for payment of cost and written statement.
5. The petitioners placed the matter for granting interim
maintenance as they have no source of income and they were in
financial hardship. Accordingly, on hearing the parties, the Family Court
has allowed interim maintenance to the peititoner No.1 as aforesaid.
6. Being aggrieved and dissatisfied with the order dated
27.01.2023 passed in connection with interim maintenance, the
petitioners have preferred this revision petition.
7. The learned counsel for the petitioners has submitted that
the learned Family Court erred in law as well as on facts in passing the
impugned order dated 27.01.2023 by directing interim maintenance
from the date of the order. According to the petitioners, the impugned
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order dated 27.01.2023 was passed in violation of the Hon'ble Apex
Court judgment reported in 2021 vol.2 SCC 324 (Rajnesh v. Neha &
Anr.)
8. It is also submitted by the learned counsel for the
petitioners that the case was filed in the year 2019 and after passing
ex-parte order same has been vacated in the year 2022 and till date no
interim maintenance has been paid to the petitioners by the
respondent No.2 knowing fully well that they have no source of income
and as such, allowing the maintenance from the date of order itself
violates the fundamental right of the petitioners and as such, the
impugned order dated 27.01.2023 is bad in law and liable to be set
aside.
9. I have considered the submissions made by the learned
counsel for the petitioner. I have also perused the judgment of the
Hon'ble Apex Court cited by the learned counsel for the petitioners.
10. Section 125(2) Cr.P.C. says that-
"Any such allowance for the maintenance or interim
maintenance and expenses of proceeding shall be payable from the
date of the order, or, if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as
the case may be."
11. On a cited decision rendered by the learned counsel for the
petitioners, it reveals that the Hon'ble Supreme Court has discussed
decisions of various High Courts and finally has given the criteria for
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determining the date from which the maintenance would be
considered. It was observed that the maintenance in all cases will be
awarded from the date of filing of the application for maintenance.
12. It appears from the record that the case is pending in the
Family Court since 2019. The respondent No. 2 has not paid any
maintenance towards the petitioners since the day of filing of the case.
It also appears that the petitioners have no source of income. It is
seen that the interim maintenance was granted to the petitioners from
the date of the order i.e. 27.01.2023 and it was directed to pay the
interim maintenance in every month within first week of succeeding
month to the petitioner No.1 from the date of the order till final
disposal of the case.
13. As per the judgment of Rajnesh v. Neha(supra), the
maintenance in all cases will be awarded from the date of filing of the
application for maintenance. Here, in this case, interim maintenance
was granted to the petitioner and the case is not finally disposed of.
14. An order of interim maintenance passed under Section 125
Cr.P.C. by any Family Court or Magistrate, during the pendency of the
proceeding, remains effective up to the final order only and does not
decide the rights and liabilities of the parties in finality.
15. Under such backdrop, I am of the view that there is no such
infirmity in passing the order. However, the learned Family Court No.1,
Kamrup(M), Guwahati will consider the matter when the case would be
finally disposed of by following the guidelines determined by the
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Hon'ble Supreme Court in the case of Rajnesh vs. Neha(supra).
16. In the result, the present petition is dismissed and disposed
of at the admission stage.
JUDGE
Comparing Assistant
