Gauhati High Court
Page No.# 1/6 vs The State Of Assam And Anr on 4 November, 2024
Page No.# 1/6
GAHC010234492017
2024:GAU-AS:10679
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./114/2017
RUNUMI PHUKAN
W/O. SRI DILIP CHANDRA PHUKAN, R/O. LACHIT NAGAR, P.O. and P.S.
TITABAR, DIST. JORHAT, PIN-785603, ASSAM
VERSUS
THE STATE OF ASSAM and ANR.
2:DILIP CHANDRA PHUKAN
S/O. LT. HEM CHANDRA PHUKAN
R/O. CHOLADHARA
R/O. CHOLADHARA
P.O. and P.S. JORHAT
DIST. JORHAT
PIN-785001
ASSAM
PRESENTLY WORKING AT OFFICE OF THE A and AA BASIN ONGC
CHINAMORA
JORHAT
NAMBOR-3
P.O. CHINAMORA
DIST. JORHAT
PIN-785008
ASSAM
Advocate for the Petitioner : MS.J CHETRY, MS.M BORAH,MR.B B BORAH,MSL
BARUAH,MS. S ROY ( Legal Aid Counsel )
Advocate for the Respondent : MS.S KANUNGOER-2, MR.D MOZUMDER(R-2),MR.I H
SAIKIA(R-2),MR.K KALITA(R-2),PP, ASSAM
Page No.# 2/6
Linked Case : Crl.Pet./485/2017
DILIP CHANDRA PHUKAN
S/O LT. HEM CHANDRA PHUKAN R/O CHOLADHARA
P.O. and P.S. JORHAT
DIST. JORHAT
ASSAM
PIN - 785001.
VERSUS
RUNUMI PHUKAN and ANR.
W/O SRI DILIP CHANDRA PHUKAN R/O LACHITNAGAR
P.O. and P.S. TITABOR
DIST. JORHAT
ASSAM
PIN - 785630.
2:THE STATE OF ASSAM
------------
Advocate for : MS.S KANUNGOE
Advocate for : MS.M BORAHR-1 appearing for RUNUMI PHUKAN and ANR.
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 04.11.2024
1. These two petitions are taken up for final disposal together
having common challenge to the judgment and order dated 06.03.2017,
passed by the learned Sessions Judge, Jorhat in Criminal Revision No.
14/2015. By the aforesaid judgment, the learned Sessions Judge modified
the maintenance award dated 09.03.2015 passed by the Sub Divisional
Judicial Magistrate, Titabar Sub Division in Misc. Case No. 110/2012
preferred by the wife under Section 125 of Cr.P.C.
Page No.# 3/6
2. The learned Magistrate by its order dated 09.03.2015
awarded maintenance of Rs.15,000/- in favour of the (wife), however,
same was modified by the impugned judgment and the maintenance was
reduced to Rs.12,000/- on a revision preferred by the husband. Both the
husband and wife being aggrieved have preferred Criminal Petition No.
485/2017 and Criminal Revision petition No. 114/2017 respectively.
3. The husband has not challenged the order dated
09.03.2015 and has also not sought for any interim stay of the said order.
The petitioner wife, though has challenged order dated 06.03.2017,
passed by the revisional court, however, none appears for the wife when
the matter was called.
4. Heard Ms. S. Kanungo, learned counsel for the petitioner in
Criminal Petition No. 485/2015 preferred by the husband and respondent
in Criminal Revision petition No. 114/2017 preferred by the wife.
5. It is on record that both the husband and the petitioner
married in the year 21.04.1986 and alleging non maintenance by the
husband, the wife had preferred Misc Case no.110/2012 under section
125 Cr.P.C. The husband has also contested the aforesaid proceeding by
filing written statement as well as by adducing evidence.
6. After considering the materials available on record, more
particularly the deposition of the husband that his wife did not have any
service or business and considering the income of the husband i.e., his
salary amounting to Rs.41,090/- as Mechanical Worker in ONGC, the
learned trial court awarded the monthly maintenance allowance of
Rs.15,000/-.
Page No.# 4/6
7. Being dissatisfied with such order, the husband preferred
the Criminal Revision Petition as recorded hereinabove. The learned
revisional court after re-appreciating the evidence available on record and
also considering the income and expenditure and also considering that
the only source of income of the husband is Rs.40,000/- from his salary,
and there is no other income, came to a conclusion that reasonable
quantum of maintenance should be Rs.12,000/- for maintenance of the
wife.
8. Ms. Kanungo, learned counsel for the petitioner (husband)
submits that it is available on record that the wife is staying in the same
residential accommodation provided by the petitioner husband and the
husband is also maintaining the wife and therefore, separate maintenance
order would not have been passed.
9. As recorded hereinabove, both the Court's below after
considering the material evidence on record as regards employment and
income of the husband and the fact that the wife was unable to maintain
herself and that the husband refused to maintain the wife, awarded
maintenance.
10. The object of revisional power of this Court under Section
397 Cr.P.C. is to set right a patent defect or an error of jurisdiction or law.
Such power can be exercised where the decision under challenge are
grossly erroneous, there is no compliance with the provisions of law, the
finding recorded is based on no evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily or perversely. It is equally well
settled that a revisional jurisdiction of High Court should not be exercised
in a routine manner. The Hon'ble Apex Court in Chandra Babu vs State
Page No.# 5/6
reported in 2015 (8) SCC 774 held that normally revisional jurisdiction
should be exercised in a question of law however, when factual
appreciation is involved, then it must find place in the class of cases
resulting in a perverse finding. The Supreme Court went to say that the
power is required to be exercised so that justice is done and there is no
abuse of power by the Court.
11. Law is equally well settled that the revisional Court need not
re-assess and re-appreciate the material or evidence on record before the
trial Court. A revisional Court is to limit its jurisdiction for adjudicating
upon the material illegalities and irregularities apparent in the orders
impugned. The conclusive and concurrent determination by both the trial
courts below on the basis of the material evidence adduced by the parties
should not be lightly interfered in exercise of this Court's power either
under Section 482 Cr.P.C. or under Section 401 Cr.P.C. until and unless
such factual determinations are perverse.
12. In the case in hand, the wife by adducing evidence and
exhibiting materials not only established the factum required to prove for
grant of maintenance but the husband while examining himself as DW1
also admitted the position that the his wife is having no income.
Therefore, staying in the same residence and the statement made before
this Court that the husband is maintaining the wife, cannot be the sole
ground to allow the present petition. It is also available on record that
similar stand was taken by the husband during the trial as well as in the
first revisional stage by contending that the husband did not treat the
wife with cruelty and he took utmost care of his wife and two children
and it was also his contention that he is not able to provide maintenance
Page No.# 6/6
to his wife as demanded by her. However, such contention was not
accepted by both the Court's below and on the basis of material available
on record, concurrently determined against the husband, though the
award was reduced by the learned Sessions Judge. Therefore, in the
backdrop of the aforesaid finding of fact and evidence, this Court in
exercise of powers under section 482 Cr.P.C would not like to interfere
with the concurrent finding of fact by the courts below, inasmuch as, the
first revisional court only interfered and modified the amount of award
and the finding of fact that the husband failed to maintain his wife
remained unaltered and the same is even not under challenge.
13. This Court has also not found any material illegality or
irregularity which is apparent in the impugned order of the learned
Sessions Judge while reducing the maintenance from Rs.15,000/- to Rs.
12,000/-.
14. In view of the aforesaid, both the petitions stand
dismissed. However, it is made clear that this order shall not preclude the
petitioners from raising claim under section 127 Cr.P.C before the learned
Trial Court below.
JUDGE
Comparing Assistant
