Gauhati High Court
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GAHC010009822023
2025:GAU-AS:998
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./32/2023
SURJYA MOHAN BISWAS
S/O- TARALAL BISWAS, R/O- VILL NO.2 SITALMARI, P.S- DHEKIAJULI,
DIST- SONITPUR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:MILAN SARKAR
D/O- BHASAN SARKAR
R/O- VILL NO.2 SITALMARI
P.S- DHEKIAJULI
DIST- SONITPUR
ASSA
Advocate for the Petitioner : MR S C DAS,
Advocate for the Respondent : PP, ASSAM, MR. S C BISWAS (R-2),MS. A BORAH (R-2)
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
29.01.2025
1. None appears for the petitioner on call. However, Mr. S. C. Biswas, learned
counsel for the respondent No. 2 is present.
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2. This criminal revision petition under Section 397, 401 read with Section 482 of
the Cr.P.C., 1973, is filed assailing a Judgment and Order dated 14.10.2022
passed by the learned Judicial Magistrate 1 st Class, Sonitpur, in MR Case No.
18/2019, preferred by the respondent wife under Section 125 of Cr.P.C., whereby
a maintenance of Rs. 4,000/- per month in favour of the wife and Rs. 2,000/- per
month to their child was granted.
3. As none appears to pursue the present petition, this Court has perused the
ground of challenge as well as judgment impugned.
4. It is the fundamental ground that the respondent No. 2 i.e. wife had
voluntarily deserted the petitioner and shifted to parental home and therefore,
she is not entitled for maintenance under Section 125(4) Cr.P.C. It is the further
ground that prior to filing of the aforesaid M.R Case, the petitioner was acquitted
in a case lodged by the wife under Section 498A of IPC which was registered as
P.R.C Case No. 916/2018 and therefore, the wife and the children are not entitled
for maintenance.
5. This Court has also perused the material available on record including the
evidence of PW-1 and PW-2 as well as the written statement.
6. It is by now well settled that there clear proof of marriage is not necessary in a
proceeding under Section 125 of Cr.PC. The Hon'ble Apex Court in Dwarika
Prasad Satpathy-VS- Bidyut Prava Dixit and Another reported in 1999 7
SCC 675, laid down the propositions that the standard of proof of marriage in a
Section 125 proceeding is not as strict as is required in a trial of an offence in a
criminal case. It is equally well settled that an order passed in an application
under Section 125 Cr.P.C. does not really determine the rights of obligations of
the parties inasmuch as the Section 125 Cr.P.C. is enacted with a view to provide
a summary remedy to neglected wife/children and parents to obtain
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maintenance.
7. It is by now well settled that standard of proof of marriage and / or desertion
and / or adulterous relation in a proceeding under Section 125 is not as strict as
is required in a trial of an offence in a criminal case. It is equally well settled that
an order passed in an application under Section 125 Cr.P.C. does not really
determine the rights and obligations of the parties inasmuch as the Section 125
Cr.P.C. is enacted with a view to provide a summary remedy to neglected
wife/children and parents to obtain maintenance.
8. 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 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.
9. This Court has perused the judgment which goes to show that the learned trial
court had duly appreciated the evidence of the witnesses.
10. The wife examined herself as PW-1 and she could very well establish the
marital status. It is also affirmed during her cross-examination that the husband
and wife stayed together for 6/7 years.
11. After perusal of the evidences including that of the PW-2 i.e. the father-in-law
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of the present petitioner and after due appreciation, the learned Trial Court came
to a conclusion that the respondent wife cannot be said to have deserted her
matrimonial home without sufficient cause and it was clear and specific and
unambiguous that due to domestic violence on the part of the second party, the
wife had to take shelter under PW-2 who provided her shelter by constructing a
house.
12. The petitioner examined himself as DW-1 and he admitted that he married the
respondent wife on 11.02.2004 and his whole case is that his wife had left him
without any reason. The learned Trial Court had also considered that the husband
admitted that he had a homeopathic pharmacy at Nagaon. Though in his cross-
examination, the petitioner husband stated that he is unemployed but admitted
that he had license of homeopathic medicine. The learned Trial Court also
considered the evidence of DW-2 and DW-3, who asserted the existence of
marriage between the parties. They had deposed that the DW-1 is running a
homeopathic pharmacy.
13. In the aforesaid backdrop, the findings of the learned Trial Court while granting
maintenance of Rs. 4,000/- to the wife and Rs. 2,000/- to their child per month,
in the considered opinion of this Court cannot be termed as a decision vitiated by
patent illegality or vitiated by perversity to exercise this Court's revisional power.
The point of desertion raised by the husband and the conclusion therein arrived
at by the learned Trial Court, in the considered opinion of this court, is a just
decision based on evidence.
14. For the reasons recorded hereinabove, this Court is in agreement with the
findings recorded by the learned Trial court. In the considered opinion of this
Court and as discussed herein above, the learned Court below had duly
appreciated the evidence on record and the conclusion arrived at on the basis of
such appreciation of evidence cannot be termed as a decision which could not
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have been arrived at on the basis of evidence available on record. This Court has
not found anything as regards any patent defect of jurisdiction or law. There is
nothing on record to suggest any non compliance of any provisions of law or that
the findings recorded is based on no evidence or that material evidence is
ignored or that judicial discretion has been exercised arbitrarily or perversely.
Therefore, this Court finds no ground to interfere with the findings of fact and the
determination made by the learned Court.
15. Accordingly, this criminal revision petition stands dismissed. Interim order, if
any, stands vacated.
JUDGE
Comparing Assistant
