Page No.# 1/8 vs Mafida Khatun
2025 Latest Caselaw 2438 Gua

Gauhati High Court

Page No.# 1/8 vs Mafida Khatun on 29 January, 2025

                                                                         Page No.# 1/8

GAHC010131062024




                                                                   2025:GAU-AS:1016

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

                                Case No. : Crl.Rev.P./254/2024

            IMAN ALI
            S/O DANESH ALI, VILL- PAKA BETBARI PAM, P.O.-PAKA BETBARI PATHAR,
            P.S. AND DIST-BARPETA, ASSAM, PIN-781352



            VERSUS

            MAFIDA KHATUN
            D/O LATE ADALAT ALI, VILL- PAKA BETBARI PATHAR, P.S.-BARPETA,
            DIST- BARPETA, ASSAM, PIN-781352



Advocate for the Petitioner   : MR. R ISLAM, N. UDDIN,MR S ISLAM

Advocate for the Respondent : MR. M H AHMED, MR. I AMIN,MR. O ULLAH

Page No.# 2/8

:::BEFORE:::

HON'BLE MRS. JUSTICE MITALI THAKURIA

Date of hearing : 23.01.2025

Date of Order : 29.01.2025

(ORDER)

Heard Mr. R. Islam, learned counsel for the petitioner. Also heard Mr. M. H. Ahmed, learned counsel for the respondent.

2. This is an application under Section 397/401 of the code of Criminal Procedure, 1973 against the impugned Final Order dated 31.05.2024, passed by the learned Principal Judge, Family Court, Barpeta in F.C.(Crl.) Case No. 321/2018, under Section 125 Cr.P.C., whereby the petitioner was directed to pay maintenance allowance @ Rs. 7,000/- (Rupees seven thousand) only per month to the respondent and Rs. 5,000/- (Rupees five thousand) only per month to her minor daughter, in total Rs. 12,000/- (Rupees twelve thousand) only per month, from the date of filing of the application.

3. The case of the petitioner, in brief, is that he married the respondent on 10.10.2016 as per Muslim Shariat by registering a Kabin Nama and out of their wedlock, one girl child was also born. However, after few months of their marriage, the respondent, at the instigation of her elder brother and her sister, deserted the petitioner and started to live in her parental house. Thereafter, the respondent, with a view to compel him to live as domesticated son-in-law, filed Page No.# 3/8

a case before the learned Family Court, Barpeta under Section 125 of Cr.P.C., which was registered as F.C. (Crl.) Case No. 321/2018), claiming maintenance allowances @ Rs. 10,000/- (Rupees ten thousand) only per month to the respondent and Rs. 5,000/- (Rupees five thousand) per month for her minor daughter, totaling Rs. 15,000/- (Rupees fifteen thousand) per month. Accordingly, the petitioner, after receiving summon, appeared before the learned Family Court, Barpeta and filed his written statement denying all the allegations brought against him by the respondent. The respondent adduced her evidence as PW-1 and the petitioner also adduced his evidence as DW-1. Thereafter, the learned Trial Court below, after hearing the arguments put forward by both sides, vide judgment and order dated 03.11.2021, allowed the petition filed by the respondent and awarded maintenance allowance @ Rs. 7,000/- (Rupees seven thousand) only per month to the respondent and Rs. 5,000/- (Rupees five thousand) only per month to her minor daughter, in total Rs. 12,000/- (Rupees twelve thousand) only per month with effect from the date of passing the judgment, i.e. from 03.11.2021. However, subsequently, the same was modified by this Court vide its order passed in Crl. Rev. Petn. No. 300/2021 and directed to pay the maintenance from the date of filing the application.

4. Thereafter, the petitioner, being aggrieved with the aforesaid judgment and order dated 03.11.2021, preferred a revision petition before this Court, being Crl. Rev. P. No. 18/2022, and this Court, vide Order dated 24.01.2022, was pleased to pass an interim order directing the petitioner to pay 50% of the awarded amount, i.e. Rs. 6,000/- per month, to the respondent and to her minor daughter. Thereafter, this Court, vide order dated 03.10.2023, passed in I.A.(Crl.) No. 389/2022, arising out of Crl. Rev. P. No. 18/2022, remanded the Page No.# 4/8

matter to the learned Family Court, Barpeta to decide the quantum of maintenance a fresh after taking into account the statement of Disclosure of Assets and Liabilities submitted by both the parties in the prescribed format in terms of the judgment passed by the Hon'ble Supreme Court in the case of Rajnesh Vs. Neha, reported in (2021) 2 SCC 324.

5. It is further stated that in compliance of the aforesaid order of this Court, dated 03.10.2023, passed in I.A.(Crl.) No. 389/2022, both the parties submitted their respective Affidavit of Disclosure of Assets and Liabilities before the learned Court below for deciding the quantum of maintenance a fresh. Thereafter, the learned Trial Court below, vide the impugned Final Order dated 31.05.2024, directed the petitioner to pay maintenance allowance @ Rs. 7,000/- (Rupees seven thousand) only per month to the respondent and Rs. 5,000/- (Rupees five thousand) only per month to her minor daughter, in total Rs. 12,000/- (Rupees twelve thousand) only per month, with effect from the date of filing of the application.

6. Hence, being aggrieved and dissatisfied with the impugned Final Order dated 31.05.2024, passed by the learned Principal Judge, Family Court, Barpeta in F.C.(Crl.) Case No. 321/2018, the petitioner has preferred the present revision petition.

7. Mr. Islam, learned counsel for the petitioner, submitted that it is a fact that the petitioner is a salaried person and he is working as CRPF and in the year 2022, when the impugned order was passed, the petitioner was posted in Jammu & Kashmir wherein the extra risk allowance was provided to him and on Page No.# 5/8

the basis of the salary certificate, the order was also passed by the learned Principal Judge, Family Court, Barpeta. But, now the petitioner is posted in Jharkhand and he is getting less salary in comparison to his earlier posting at Jammu & Kashmir in the year 2022. More so, in spite of the remand of the case, the present respondent did not produce the bank statement at the time of hearing. Further he submitted that the father of the petitioner is also suffering from diabetes and other ailments, but the learned Trial Court below did not consider the liability of the present petitioner and passed the impugned order directing him to pay an amount of Rs. 12,000/- per month towards the maintenance of the respondent and her child. However, he admitted that the petitioner has the liability to provide maintenance to his wife and child, but the amount which has been fixed by the learned Trial Court below is an excessive amount and the petitioner is not in a position to provide enhanced amount of maintenance, as directed by the learned Principal Judge, Family Court, Barpeta vide its impugned Final Order dated 31.05.2024. Mr. Islam, however, submitted that the petitioner is still ready to pay the maintenance @ Rs. 8,000/- per month if the same is reduced to 8,000/- per month. More so, the petitioner is ready to pay maintenance in respect of the child considering his educational expenses etc.

8. Mr. Ahmed, learned counsel for the respondent, submitted in this regard that in spite of the direction of this Court to submit his salary statement along with I.T. Returns, the petitioner did not filed those documents and he also suppressed his salary statement and the I.T. Returns at the time of filing the Affidavit on Assets and Liabilities. However, the respondent collected the salary slip of December, 2024 of the petitioner, wherefrom it is seen that the presently Page No.# 6/8

the gross salary of the petitioner is Rs. 66,086/- per month and after deduction, he is drawing net salary of Rs. 46,424/-. He further submitted that after the remand of the case before the learned Trial Court below, both the parties furnished their Affidavit on Assets and Liabilities, as directed, and on the basis of the same and other aspects of the case, the learned Principal Judge, Family Court, Barpeta rightly assessed the maintenance allowance @ Rs. 12,000/- per month, i.e. Rs. 7,000/- for the respondent No. 2 and Rs. 5,000/- for her child. He further submitted that considering the price hike of the essential commodities and educational expenses, the respondent is entitled to 25% of the income of the petitioner and in that context, Mr. Ahmed, learned counsel for the respondent, also relied on a decision of Hon'ble Apex Court reported vide (2017) 14 SCC 200 (Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy) and emphasized on paragraph No. 15 of the said judgment, which reads as under:

"15. The review petition under Order 47 rule 1 CPC came to be filed by the respondent-wife pursuant to the liberty granted by this Court when the earlier order dated 02.02.2015 awarding a maintenance of Rs.16,000/- to the respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant- husband was getting a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account of GPF and Rs.12,000/- towards income-tax. In February, 2016, the net salary of the appellant is stated to be Rs.95,527/- . Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129, in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs.23,000/- to Rs.20,000/- per month Page No.# 7/8

as maintenance to the respondent-wife and son."

9. Mr. Ahmed accordingly submitted that there is no need of interference in the judgment and order dated 31.05.2024, passed by the learned Principal Judge, Family Court, Barpeta in F.C.(Crl.) Case No. 321/2018, under Section 125 Cr.P.C. directing the petitioner to pay maintenance @ Rs. 12,000/- per month towards the maintenance allowance for the respondent No. 2 as well as her child.

10. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the order passed by the learned Trial Court below. It is seen that the learned Principal Judge, Family Court, Barpeta has considered the Assets and Liabilities submitted by both the parties after the remand of the case. It was the claim of the petitioner before the learned Trial Court below that the respondent is earning Rs. 10,000/- per month from her tailoring works, but the said fact cannot be substantiated by submitting any document along with the Affidavit on Disclosure of Assets and Liabilities. But it an admitted fact that the present petitioner is a government employee who is working in CRPF and from the disclosure statement made before the learned Trial Court below, it is seen that his gross salary is Rs. 66,759/- per month and the learned Trial Court below also considered the pay slip of October, 2022, wherein his gross salary was shown as Rs. 66,759/-, and the said pay slip was also submitted by the respondent. More so, the learned Trial Court below also considered the fact of payment of EMI of Rs. 8,756/- and it was observed that the said loan of Rs. 4,00,000/- was obtained only for his personal use which cannot have any bearing on the quantum of maintenance allowance payable to the respondent and her minor child. Accordingly, considering all Page No.# 8/8

these aspects of the case, viz-a-viz the income of the present petitioner and also considering the fact that the respondent No. 2 had no permanent source of income of her own, the learned Principal Judge, Family Court, Barpeta had passed the order directing the petitioner to pay Rs. 7,000/- per month towards the maintenance of the respondent and Rs. 5,000/- per month for the minor daughter of the respondent.

11. Thus, considering the entire facts and circumstances of this case, living standard of the parties and the income of the present petitioner, who is admittedly a government employee and working in CRPF, this Court finds that the order dated 31.05.2024, passed by the learned Principal Judge, Family Court, Barpeta in F.C.(Crl.) Case No. 321/2018, under Section 125 Cr.P.C., needs no interference of this Court as the maintenance is properly assessed by the learned Principal Judge, Family Court, Barpeta after remand of the case and after considering the Assets and Liabilities of both the parties. Accordingly, the present revision petition stands dismissed being devoid of merit.

12. The criminal revision petition stands disposed of in terms above.

JUDGE

Comparing Assistant