Gauhati High Court
Md Merajul Islam vs The State Of Assam And Anr on 6 August, 2024
Author: Malasri Nandi
Bench: Malasri Nandi
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GAHC010203322023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./379/2023
MD MERAJUL ISLAM
S/O LATE OSMAN ALI
A RESIDENT OF VILL- DUMUNICHOWKI
P.O. MARUACHOWKI P.S. SIPAJHAR
DIST. DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
TO BE REP. BY THE PP, ASSAM
2:SWEETY HAZARIKA
W/O MERAJUL ISLAM
D/O AZIZUR RAHMAN
VILL-NORTH MANDAKATA
P.O. MANDAKATA
PS. BAIHATA
DIST. KAMRUP
ASSAM
PIN-78112
Advocate for the Petitioner : MR. M A I HUSSAIN, N ISLAM
Advocate for the Respondent : PP, ASSAM, MR. S K CHHETRY (R-2),MR. M ISLAM (R-2),MR. N
UDDIN (R-2)
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BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 06.08.2024
Heard Mr. M.A.I. Hussain, learned counsel for the petitioner.
Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor for the
State and Mr. N. Uddin, learned counsel for the respondent No. 2.
2. The petitioner has preferred an application u/s 397 r/w Section
401 Cr.P.C. against the impugned order dated 10.07.2023 passed by the
learned Principal Judge, Family Court-II, Kamrup(M), Guwahati in
connection with F.C. (Crl.) Case No. 242/2022, directing the
petitioner/husband to pay maintenance allowance of Rs.7,000/- per
month to the respondent/wife and her minor daughter till disposal of
the case.
3. The respondent/wife had filed an application u/s 125 Cr.P.C.
before the court of learned Principal Judge, Family Court-II, Kamrup(M),
Guwahati, claiming maintenance from her husband i.e., the present
petitioner. On receipt of the notice, the petitioner appeared before the
learned Principal Judge, Family Court-II, Kamrup(M), Guwahati.
According to learned counsel for the petitioner, on 10.07.2023, the
learned trial court had passed the order directing the petitioner/husband
to pay interim maintenance allowance of Rs.7,000/- per month to the
respondent /wife and her minor daughter till disposal of the case.
4. It is the submission of learned counsel for the petitioner that
the learned trial court has failed to appreciate the judgment of the
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Hon'ble Supreme Court in Rajnesh vs. Neha reported in (2021) 2 SCC
324, makes it mandatory to file an affidavit for disclosure of assets and
liabilities of the parties in order to arrive at a calculation for determining
the quantum of maintenance.
5. Learned counsel for the petitioner further submits that as the
impugned order dated 10.07.2023 passed by the trial court is a clear
violation of the guidelines referred in the case of Rajnesh (Supra), the
order is liable to be set aside with a direction to decide the matter
afresh.
6. I have considered the submissions of the learned counsel for
the parties. I have also perused the impugned order dated 10.07.2023.
7. As per the direction of the Hon'ble Supreme Court in the case
of Rajnesh vs. Neha (Supra) parties were directed to give their
declaration regarding their income, assets and liabilities. From the order
of the trial court dated 10.07.2023, it reveals that this exercise was not
undertaken by the learned trial court in spite of the binding direction
issued by the Hon'ble Supreme Court.
8. The paragraphs of the judgment of Rajnesh (supra) are
reproduced as follows -
"..... At present, the issue of interim maintenance is decided on
the basis of pleadings where some amount of guess work or
rough estimation takes place, so as to make a prima facie
assessment of the amount to be awarded. It is often said that
both parties submit scanty material, do not disclose the correct
details and suppress vital information, which makes it difficult
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for the Family court to make an objective assessment for the
grant of interim maintenance. While there is a tendency on the
part of the wife to exaggerate her needs, there is a
corresponding tendency by the husband to conceal his actual
income.
The party claiming maintenance either as a spouse or as a
partner in a civil union, leave in relationship, common love
marriage, should be required to file a concise application for
interim maintenance with limited pleadings along with an
affidavit of disclosure of assets and liabilities before the
concerned court, as a mandatory requirement.
On the basis of the pleadings filed by both the parties and the
affidavits of disclosure, the court would be in a position to
make an objective assessment of the approximate amount to
be awarded at the interim stage."
9. In view of the aforesaid legal mandates, it can be said that the
maintenance is dependent upon factual situations. The court should
mould the claim for maintenance brought before it. It is to be noted
down that the financial capacity of the husband, his actual income,
reasonable expenses for his own maintenance and dependent family
members whom he is obliged to maintain under the law, liabilities if any,
would be required to be taken into consideration to arrive at the
appropriate quantum of maintenance to be paid.
10. In the case in hand, after going through the order of the trial
court dated 10.07.2023, it appears that the trial court passed the
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impugned order without affording any opportunity to the petitioner to
disclose his assets and liabilities which is a gross violation of the
guidelines laid down by the Hon'ble Supreme Court in Rajnesh (Supra).
11. Hence, the impugned order dated 10.07.2023 is set aside with a
direction to the trial court to give opportunity to both the parties to
submit their respective affidavits disclosing their assets and liabilities
and thereafter, to hear the matter afresh and to deliver the
judgment/order in accordance with law.
12. If any payment is made earlier by the petitioner in view of the
impugned order dated 10.07.2023, the same shall be adjusted
accordingly. Interim order, if any, is hereby vacated. Parties are directed
to appear before the trial court on 27.08.2024 to obtain necessary
instruction.
13. In view of the above observation, the criminal revision petition is
disposed of at the admission stage.
JUDGE
Comparing Assistant
