Page No.# 1/ vs Musst Rajna Begum Barbhuiya And Anr
2025 Latest Caselaw 2310 Gua

Gauhati High Court

Page No.# 1/ vs Musst Rajna Begum Barbhuiya And Anr on 27 January, 2025

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GAHC010110922022




                                                                    2025:GAU-AS:839

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

                                Case No. : Crl.Rev.P./285/2022

            MD. KUTUB UDDIN BARBHUIYA
            S/O LATE ABDUL LATIF BARBHUIYA
            R/O VILL- HAIRBOND
            P.S. BORKHOLA
            DIST. CACHAR, ASSAM



            VERSUS

            MUSST RAJNA BEGUM BARBHUIYA AND ANR
            D/O LATE ABDUL SAMAD LASKAR
            R/O VILL- PBELADAHAR
            P.S. SILCHAR,
            DIST. CACHAR, ASSAM
             PIN NO. 788001

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

Advocate for the Petitioner   : MR H R A CHOUDHURY, MR. I U CHOWDHURY,MR. A AHMED

Advocate for the Respondent : PP, ASSAM, MR. K MIRA (R-1),MR. R D GUPTA (R-1),MS. S
PHUKAN (R-1),MR. S D PURKAYASTHA (R-1)
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                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

27.01.2025

Heard Mr. A. Ahmed, learned counsel petitioner. Also heard Mr. K. Mira, learned counsel for the respondent No.1 and Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent No.2.

2. This application is filed under Section 397 of the Code of Criminal Procedure, 1973 read with Section 19 (4) of Family Courts Act, challenging the impugned Orders dated 10.01.2022 and 24.02.2022 passed by the learned Principal Judge, Family Court, Cachar, Assam in a petition filed by the respondent No.1, under Section 127 of Cr. P.C. in F.C.(Crl) No. 05/2019, whereby, the monthly maintenance allowance of Rs. 1500/- was enhanced to Rs.7,000/-.

3. It is contended by the petitioner that he married respondent No. 1 in 1994, and they had one daughter. Due to matrimonial disputes, they separated and divorced in 1997, and both have lived separately since. On 11.12.2006, respondent No. 1 filed a petition under Section 125 of Cr.P.C for maintenance, which was registered as F.C (Crl) No. 631/2006. The learned Principal Judge, Family Court, Silchar, by Order dated 29.10.2010, directed the petitioner to pay Rs. 1,000/- per month to respondent No. 1 and Rs. 700/- to their daughter. The petitioner complied with this order. In 2015, respondent No. 1 filed an application under Section 127 of Cr.P.C for an enhancement, registered as F.C (Crl) Misc. Case No. 15/2015. The Trial Court, in its Order dated 29.02.2016, hold that the petitioner's daughter had attained majority and therefore, she is Page No.# 3/10

not entitled for maintenance. However, the maintenance for respondent No. 1 was enhanced to Rs. 1,500/- per month. The petitioner also complied the Order dated 29.02.2016. On 15.03.2019, respondent No. 1 filed another application under Section 127 of Cr.P.C for further enhancement, registered as F.C (Crl) Misc. Case No. 05/2019. Due to the COVID-19 pandemic, the case was delayed. On 10.01.2022, the Court decided to proceed ex-parte, and on 24.02.2022, it granted respondent No. 1's request for an enhancement maintenance to Rs. 7,000/- from Rs. 1,500/- per month.

4. Being highly aggrieved by the impugned Orders dated 10.01.2022 and 24.02.2022 passed by the learned Principal Judge, Family Court, Cachar, Assam, in F.C. (Crl.) Misc. Case No. 05/2019, the petitioner has filed this revision petition praying for setting aside and quashing of the said impugned orders.

5. Mr. Ahmed, learned counsel for the petitioner, has submitted that after the divorce, respondent No. 1 filed a maintenance case and a subsequent application for enhancement of the maintenance allowance, to which the petitioner complied with the Court's orders dated 29.10.2010 and 29.02.2016. Subsequently, the parties settled their dispute after the divorce, and the petitioner paid Rs. 25,000/- as Maharana to respondent No. 1. Upon receiving the said amount, respondent No. 1 sworn an affidavit on 30.07.1997, stating that she would not claim maintenance or dowry. However, respondent No. 1 filed another application, being F. C. (Crl) No. 05/2019, claiming enhancement of the maintenance allowance. The learned Trial Court, in its Order dated 10.01.2022, reflected that the summons were issued via registered post. However, the petitioner did not receive the notice of the proceedings, and the record does not show that the summon was received by him or by the Commandant of 155 Bn BSF. Furthermore, the petitioner complied with the Page No.# 4/10

earlier maintenance orders on humanitarian grounds; however, the learned Trial Court passed the ex-parte Order dated 24.02.2022 without providing the petitioner an opportunity to contest the case.

6. He further submits that inspite of the clear guideline from the Hon'ble Apex Court, the learned Trial court did not ask the parties to furnish their assets and liabilities and without considering the same, the said Court passed the ex- parte order dated 24.02.2022.

7. In support of his submission, he relies on the decision passed by the Co- ordinate Bench of this Court in Criminal Petition No. 120/2024, specifically on paragraphs 6, 8, and 9 of the said order, which read as follows:

"6. Referring to a decision of the Hon'ble Supreme Court in the case of Aditi Alias Mithi Vs. Jitesh Sharma, reported in 2023 SCC OnLine SC 1451, Mr. Betala submits that the guidelines laid in Rajnesh (supra) has to be followed mandatorily by all the Courts, while deciding the case of maintenance.

8. It is to be mentioned here that while dealing with the issue of payment of interim maintenance, Hon'ble Supreme Court in paragraphs 64 and 65 of Rajnesh (supra) had stated as under:

64. In the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act, 1984 must make an endeavour for settlement of the disputes. For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Sections 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counselors in every Family Court, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.

65. The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law 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 court concerned, as a mandatory requirement. On the basis of the pleadings filed by both 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 towards maintenance at the interim stage.

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9.Further, in the case of Aditi Alias Mithi (supra), the Hon'ble Supreme Court paragraphs 14, 15 and 16, had observed as under:

"14. A perusal of the order passed by the High Court shows that the amount of maintenance awarded to the appellant was reduced from Rs. 20,000/- to Rs. 7,500/- per month, merely noticing that earlier, the respondent was in business. However, at that point in time he was in debt and in financial distress, hence, not able to pay huge amount of maintenance to the minor daughter. The respondent is not represented before this Court to justify the stand taken by him before the High Court. The Family Court had passed a detailed order giving reasons.

15. Nothing is evident from the record or even pointed out by the learned counsel for the appellant at the time of hearing that affidavits were filed by both the parties in terms of judgment of this Court in Rajnesh's case (supra), which was directed to be communicated to all the High Courts for further circulation to all the Judicial Officers for awareness and implementation. The case in hand is not in isolation. Even after pronouncement of the aforesaid judgment, this Court is still coming across number of cases decided by the courts below fixing maintenance, either interim or final, without their being any affidavit on record filed by the parties. Apparently, the officers concerned have failed to take notice of the guidelines issued by this Court for expeditious disposal of cases involving grant of maintenance. Comprehensive guidelines were issued pertaining to overlapping jurisdiction among courts when concurrent remedies for grant of maintenance are available under the Special Marriage Act, 1954, Section 125 Cr. P.C., the Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956, and Criteria for determining quantum of maintenance, date from which maintenance is to be awarded, enforcement of orders of maintenance including fixing payment of interim maintenance. As a result, the litigation which should close at the trial level is taken up to this Court and the parties are forced to litigate.

16. As in the case in hand, the impugned order passed by the High Court is cryptic and is bereft of reasons. In our opinion, the same deserves to be set aside and the matter is liable to be remitted to the High Court for consideration afresh. Ordered accordingly. As the respondent remained unrepresented, the High Court may issue notice for his appearance on the date so fixed by it."

8. Mr. Ahmed, learned counsel for the petitioner, has submitted that the petition is not maintainable under Section 125(4) of the Cr.P.C., as both parties have been living separately. The respondent No. 1 left the matrimonial home and moved to her parental house, and thus she is not entitled to any maintenance under Section 125(4). Therefore, he prays for the setting aside and quashing of the impugned orders dated 10.01.2022 and 24.02.2022 (ex-

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parte orders), in which the learned Court below had enhanced the maintenance allowance from Rs. 1,500/- to Rs. 7,000/- and directed the petitioner to pay the same to respondent No. 1. He also prayed that the matter be remanded to the learned Trial Court for fresh disposal, considering the assets and liabilities of both parties.

9. On the other hand, Mr. Mira, learned counsel for respondent No. 1, has submitted that after the birth of their daughter, the petitioner and his family member subjected her to mental and physical abuse. Efforts made by the brother and relatives of respondent No. 1 to compromise the dispute. She was recovered from the petitioner's home with the help of the police. The petitioner remarried without divorcing respondent No. 1, which makes the second marriage illegal under Government Service Rules. Since she left her matrimonial house, the respondent No. 1 and her daughter have been living with her elder brother, who has limited income.

10. He further submitted that the petitioner falsely claimed in the petition that a divorce occurred in 1997, while respondent No. 1 remains legally married to the petitioner. Despite having a government job with a monthly income of around Rs. 80,000/-, the petitioner did not provide maintenance to respondent No. 1 or their daughter. Consequently, in 2006, respondent No. 1 filed a maintenance petition, which resulted in an ex-parte order granting Rs. 1,000/- per month for herself and Rs. 700/- for the daughter. In 2015, due to price hike of the commodities and educational expenses of the daughter, she sought for an increase in the maintenance allowance. The Trial Court vide its Order dated 29.02.2016 had enhanced the maintenance to Rs. 1,500/- per month for respondent No. 1, but provided no maintenance for the daughter, as she had attained the age of majority. In 2018, respondent No. 1's daughter got married, Page No.# 7/10

but the petitioner refused for financial help. Respondent No. 1, who has been suffering from health issues, filed another petition in 2019 for an enhancement of maintenance. The Court increased the maintenance to Rs. 7,000/- per month, citing inflation and the respondent's health condition. Though, the petitioner states that notices were not properly served, but the records confirm that the notices were sent, and the petitioner did not contest the order of ex-parte. Additionally, the affidavit claiming that respondent No. 1 received Rs. 25,000 as a settlement is false; respondent No. 1 never sworn any such affidavit. Furthermore, the petitioner's second marriage is illegal, as there was no divorce. The Family Court's decision for enhancement of the maintenance allowance to Rs. 7,000/- per month was based on a careful consideration of respondent No. 1's financial and health needs.

11. He further submitted that the petitioner has not raised the issue of maintainability but only challenged the enhancement of amount, wherein the petitioner was directed to pay Rs. 7,000/- per month to respondent No.1 as maintenance allowance. Thus, he submits that the learned Trial Court rightly passed the impugned ex-parte Order dated 24.02.2022, considering all aspects of the case. He also submits that respondent No. 1 is entitled to more than Rs. 7,000/-, as the petitioner is obligated to pay 25% of his income towards her maintenance.

12. In addition to his submission, he relies on the decision rendered by the Hon'ble Allahabad High Court in Criminal Revision Case No. 3032/2023, specifically referring to paragraphs 18 and 19 of the judgment, which read as follows::

"18. From the above analysis, I am of the opinion that the trial court has Page No.# 8/10

rightly concluded that opposite party no. 2 is the legally wedded wife of revisionist, Matapher. As far as quantum of maintenance determined by the trial court as Rs.7,000/- per month payable to the opposite party no. 2, Smt. Durga Devi, the monthly income of revisionist should be taken into consideration. The revisionist had admitted in his pleadings as well as deposition that he retired in the year 2013 and is getting Rs.34,656/- as monthly pension.

19. The Hon'ble Apex Court in Kulbhushan Kumar Vs. Raj Kumari, (1970) 3 SCC 129 has held that 25% of the husband's net salary would be just and proper to be awarded as maintenance allowance to the wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the financial capacity of the husband to make the payment."

13. Citing the above judgments, he submits that the learned Trial Court rightly passed the ex-parte order, having considered all the facts and circumstances of the case. He further submitted that the petitioner did not raise any grounds regarding non-disclosure of assets, liabilities, or maintainability in the present petition, and therefore, these issues cannot be raised at this stage. The present petition solely challenges the order of enhancement. Thus, he prays that the criminal revision be dismissed and the impugned ex-parte order dated 24.02.2022, directing the petitioner to pay Rs. 7,000/- per month as maintenance along with arrears from 24.02.2022 to respondent No. 1, be upheld.

14. After hearing the submissions of both learned counsels, I have perused the case record and the orders passed by the learned Trial Court. It is undisputed that the petitioner and respondent No. 1 were married under Muslim law, and the paternity of the child is also undisputed. An initial maintenance order was passed on 29.10.2010, directing the petitioner to pay Rs. 1,000/- to respondent No. 1 and Rs. 700/- to the minor daughter. This ex-parte order was passed due to the petitioner's failure to appear despite receiving notice, and it Page No.# 9/10

was not challenged. In 2016, the maintenance for respondent No. 1 was increased to Rs. 1,500/-, and the Trial Court had observed that the daughter had attained majority and was no longer entitled to maintenance. The petitioner did not challenge the order dated 29.02.2016 nor question its maintainability. The present petition, filed by the petitioner, challenges a subsequent enhancement of maintenance from Rs. 1,500/- to Rs. 7,000/- for respondent No. 1. This order was also passed ex-parte due to the petitioner's failure to appear. The petitioner claims they separated and divorced, with respondent No. 1 receiving a Maharana of Rs. 25,000 and agreeing, via an affidavit on 30.07.1997, not to claim maintenance or dowry. However, the petitioner did not raise this issue before the Trial Court, nor did they provide evidence to bring the same into the record.

15. Regarding asset and liability disclosures, the guidelines from Rajnesh (supra), passed in 2021, were not applicable at the time the maintenance orders dated 29.10.2010 and 29.02.2016 were passed, as the judgments were delivered after these orders. The enhancement order passed on 24.02.2022 was based on the petitioner's salary as a government servant and the rising prices of essential commodities. Therefore, I find no error in the Trial Court's decision.

16. In light of the facts and circumstances, I find no reason to interfere with the ex-parte order dated 24.02.2022, passed by the learned Principal Judge, Family Court, Cachar, Assam in F.C.(Crl) No. 05/2019, as the price hike was appropriately considered. The petition is, therefore, dismissed. However, the petitioner is at liberty to file a petition under Section 127 of the Cr.P.C. for modification of the enhancement order, if circumstances change. In such a case, both parties must submit their respective asset and liability details before the learned Trial Court for a proper assessment of maintenance.

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17. With above observation, this criminal revision petition stands, disposed of.

JUDGE

Comparing Assistant