Sumita Mazumdar vs Debasish Mazumdar
2025 Latest Caselaw 2483 Gua

Gauhati High Court

Sumita Mazumdar vs Debasish Mazumdar on 30 January, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

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GAHC010137682022




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

                              Case No. : Crl.Rev.P./362/2022

            SUMITA MAZUMDAR
            C/O MR. SUBHASH BHATTACHARJEE,
            HOUSE NO. 11, SOUTH BYE-LANE NO. 01,
            LACHITNAGAR, GUWAHATI-781007,
            DIST. KAMRUP (M), ASSAM

            VERSUS

            DEBASISH MAZUMDAR
            SON OF LATE DULAL MAZUMDAR
            PERMANENT RESIDENT OF
            C/O SRI MANIK MAZUMDAR
            KANAKLATA NIWAS, HOUSE NO. 9,
            JYOTI PATH,
            BHASKARNAGAR
            P.S. FATASIL AMBARI
            GUWAHATI- 781018, ASSAM
            PRESENT ADDRESS-
            DR. DEBASISH MAZUMDAR
            FLAT NO. P-1405,
            PRATEEK WISTERIA, SECTOR-77, NOIDA
            PIN- 201304
            UTTAR PRADESH.
            OFFICE ADDRESS-
            DR DEBASISH MAZUMDAR
            SENIOR PRINCIPAL
            SMART ANALYST,
            DLF QUTUB ENCLAVE, FIRST FLOOR, DLF PLAZA TOWER, DLF PHASE 1,
            GURUGRAM,
            HARYANA -122002



Advocate for the Petitioner   : MR. M NATH, MS. S RAJKUMARI,MR. A ROY
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Advocate for the Respondent : MR. K BHATTACHARJEE, MR. S DAS,MS. B TALUKDAR

BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGMENT & ORDER (CAV) Date : 30-01-2025

Heard Mr. M, Nath, learned counsel for the petitioner. Also heard Mr. K. Bhattacharjee, learned counsel for the respondent.

2. By filing this application under section 397, 401 read with section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for setting aside the Judgment and Order dated 12/04/2022 passed in F.C. (Crl.) 361/2013 by the Learned Principal Judge, Family Court No. 1, Kamrup (M) at Guwahati.

3. The brief facts of the case is that the petitioner got married with the respondent on 27/01/2008 as per Hindu rites and rituals at Guwahati and their marriage was registered before the Marriage Officer, Kamrup (Metro) whereby a certificate was issued under No. 158 dated 28/01/2008. However, after few months of their marriage, the respondent and his family members began to quarrel with the petitioner over every trivial matter. The respondent and his family members used to torture the petitioner both mentally as well as physically by using abusive languages. The mother-in-law and sister-in-law of the petitioner forcefully snatched away all the jewelleries, clothes and valuable gifts which were given by the parents and other relatives of the petitioner and further started demanding money and jewelleries from the parents of the petitioner.

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4. On another occasion, the grandfather of the petitioner became seriously ill and it was his last wish to see his granddaughter for the last time. However, the respondent, his sister and mother did not allow the petitioner to come down to Guwahati to see her grandfather for the last time. Moreover, the respondent and his mother started demanding a flat from the father of the petitioner and threatened the father of the petitioner that if the flat is not arranged, she will make the life of the petitioner a hell. Thereafter, on several occasions, the respondent and his family members pressurised the petitioner for money and tortured her, even refused to keep the petitioner with them. Thereby, the petitioner lodged an FIR before the Paltan Bazar P.S. and a case was registered vide Paltan Bazar P.S. Case No. 1091/11 u/s 498A IPC, and started to live in the house of her parents. Thereafter, the respondent initiated divorce proceeding in the Family court, Delhi. The petitioner did not receive any notice regarding the divorce proceeding and by making false and misleading statement the respondent obtained an ex-parte Judgment. The petitioner came to know about the said Judgment only when she sent a notice to the respondent for restitution of their conjugal rights. Thereafter, the petitioner filed a petition for modification of the ex-parte divorce decree which was rejected by the learned Family Court, Delhi. The petitioner preferred an appeal before the Hon'ble Delhi High Court which was also rejected on the ground of delay. Thereafter, the petitioner approached the Hon'ble Supreme challenging the Judgment and Order passed by the High Court of Delhi. However, the SLP was withdrawn with a liberty to approach the appropriate court praying for maintenance. Accordingly, the petitioner approached the family court, Kamrup(M) praying for grant of maintenance from the respondent vide FC (Crl) case no. 361/ 2013. The principal Judge, Family Court granted interim maintenance amounting to Rs.

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12,000/- per month to the petitioner. After hearing both sides, the respondent was directed to pay a sum of Rs. 15,000/- per month to the petitioner as maintenance.

5. Being highly aggrieved and dissatisfied with the Judgment and Order dated 12/04/2022, the petitioner has preferred this revision petition.

6. It was urged by learned counsel for the petitioner that the respondent has been working in the post of manager in TCS. As per the document available in the record in the year 2014 his gross yearly income was Rs. 23,33,820/-. This income was his taxable income. In addition to that the respondent has also non taxable income. The petitioner has no income of her own. Her father has been retired from his service. Under such backdrop, the petitioner is entitled for more amount of maintenance.

7. It is also the submission of learned counsel for the petitioner that the Hon'ble Supreme Court in its various pronouncement granted maintenance to the wife @ more than 25% of the net income of the Husband. Here in the instant case, the learned trial court without considering the law laid down by the Hon'ble Apex court and inspite of having net income of the respondent/ husband more than Rs. 2,50,000/- per month, the trial court has granted only Rs. 15,000/- monthly maintenance to the petitioner which is much below the ratio laid down by the Hon'ble Apex Court. Hence, learned counsel for the petitioner has prayed for enhancement of monthly maintenance of the petitioner by setting aside the Judgment of the trial court dated 12/04/2022.

In support of his submission, learned counsel for the petitioner has placed reliance on the following case laws -

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a. (2021) 2 SCC 324 (Rajnesh vs. Neha and another)

b. (2017) 14 SCC 200 (Kalyan Dey Choudhary vs. Rita Dey Choudhury)

8. On the other hand, the case of the respondent is that he has been paying the monthly maintenance allowance @Rs. 15,000/- per month to the petitioner regularly without any break. The respondent states that the marriage between the petitioner and the respondent were dissolved by a decree of divorce on 20/11/2012 and thereafter following due process of law the respondent got remarried with Smti. Mousumi Nath on 24/03/2014 and out of their wedlock, a female child was born. The respondent further states that he has immense responsibility to take care of, as he has family members constituting himself, his wife, his daughter and old age mother and even loans to pay. The respondent being the only earning member of his family, he has to meet the following monthly expenses - Maintenace allowance, EMI of home loan, EMI of Home renovation loan, LIC (self) premium, LIC (wife) premium, Society maintenance, Health Insurance, Child education, domestic help for old aged mother and children, driver and petrol, food, medicine etc. Furthermore, the respondent states that the petitioner having LLB degree and being an advocate by profession, must have her own income. Hence, relying on the aforesaid grounds, enhancement of maintenance is objected by the respondent.

In support of his submission, learned counsel for the respondent has relied on the following case law -

a. (2010) 15 SCC 372 (Bhushan Kumar Meen vs. Mansi Meen @ Harpreet Kaur).

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9. Having heard the learned counsel for the parties, the admitted fact is that the respondent has been working at TCS and his monthly salary is more than Rs. 2,50,000/-. The petitioner has prayed for enhancement of maintenance allowance from Rs. 15,000/- per month to the tune of Rs. 1, 25,000/- per month.

10. At the outset, this Court seeks to deliberate upon the scope of a revision petition under Sections 397/401 Cr.P.C. which has been succinctly explained in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460. The relevant portion of the said judgment has been reproduced as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions 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. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits...."

11. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452, the Supreme Court had observed as under:

"5. Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In Page No.# 7/11

other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter, the impugned judgment of the High Court is wholly unsustainable in law and we, accordingly, set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence."

12. In a 2018 judgment of the High Court of Andhra Pradesh, titled Dr. J. Muralidhar Goud v. State of Telangana rep. by its Special Public Prosecutor for CBI, 2018 SCC OnLine Hyd 470, though the matter therein was not related to grant of maintenance, the principles underlying scope of revision under Sections 397/401 Cr.P.C. have been comprehensively discussed. The same has been reproduced below:

"17. Section 397 Cr.P.C. empowers the High Court and a Sessions Judge to call for and examine the record any proceedings before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court. This section simply lays down the matters which a revisional Page No.# 8/11

Court may investigate. The object of this section in conferring the power of revision is that the revisional Court is given a supervisory jurisdiction to secure the correction of a patent error or defect which has resulted in miscarriage of the justice and this may arise from misconception of law or irregularity of procedure. But, the power conferred by this section should not be so exercised as to convert it into a right of appeal, where such a right is excluded by the Code. But unlike Sections 100 and 115 of the Cr.P.C, the power of revision under Cr.P.C. is not so rigidly circumscribed, within the rule requiring clear question of law or of jurisdiction, as to exclude this Court's jurisdiction to interfere where the conclusions of the court below are grossly erroneous and even though grave injustice may have resulted therefrom. Thus, it is clear from the language used in Section 397 Cr.P.C. that the revisional Court can exercise power only to call for record to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order as to the regularity of the proceeding. It is a correcting Court. A revisional Court can revise the order of an inferior criminal Court not only on the ground of jurisdiction, but also on the ground that it is illegal or erroneous. „Legality‟ and „propriety‟ in Section 397 Cr.P.C. both include questions of law as to whether a finding, sentence or order was legal or proper having regard to the evidence. „Correctness‟ in the section does not mean that the revisional Court may inquire whether the finding was acceptable to it on a balance of the evidence recorded in the Trial Court. The correctness of the finding, sentence or order also implies a legal defence, such as the finding being based on no evidence or being incorrect in the sense that the witnesses may have said. Any finding which is correct on the evidence must necessarily be held to be proper and the order of dismissal which follows the finding must be held to be both correct and proper. No finding can be said to be either correct or proper when the material on which it is based cannot possibly lead any reasonable man to arrive at that finding and in such a case, it will be open to the revisional Court to set it aside and to replace it by what according to it would be the legitimate finding on the evidence. Therefore, this Court unless concludes that the findings of the Trial Court are not legal and proper or correct or regular, the Court can't interfere with such order.

18. Section 401 of Cr.P.C. confers a kind of paternal and supervisory Page No.# 9/11

jurisdiction on the High Court over all other criminal Courts established in the State in order to correct miscarriage of justice arising from a misconception of law, irregularity or procedure, neglect or proper precautions or apparent harshness of treatment which has on the one hand resulted in some injury to the due maintenance of law and order or, on the other hand, in some underserved hardship to individuals. (vide Amar Chand Agarwalla v. Shanti Bose12). The revisional power conferred on the High Court by Section 401 of Cr.P.C. is discretionary power, has to be exercised in the aid of justice.

Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon facts and circumstances of each case. The discretion conferred on the High Court by Section 401 of Cr. P.C has to be exercised judicially, on judicial principles and not arbitrarily. Thus, the jurisdiction of this Court under Section 401 Cr.P.C. is limited and it cannot be exercised in a casual manner by this Court and the High Court may exercise such power only when the Court found that there is a manifest perversity in the order or the finding recorded by the Inferior Court is without any evidence or material. In the present case, when the Inferior Criminal Court followed the procedure in accordance with law, irrespective of the correctness and legality of the order, this Court cannot interfere with such orders passed by the Inferior Court."

13. It is evident from the above judicial pronouncements that the scope of interference in a revision petition is extremely narrow. The statutory provisions under Cr.P.C. bestows upon the High Court jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, the revisional court does not dwell upon the facts and evidence in a case at length. It solely considers the material for the purpose of satisfying itself that the impugned decision is legal and proper with respect to the findings, sentence and order; it refrains from substituting its own conclusion on an Page No.# 10/11

elaborate consideration of evidence [Refer to Taron Mohan v. State, 2021 SCC OnLine Del 312].

14. Having discussed the powers of a Court assuming revisional jurisdiction, along with the fetters with which it is bound, this Court deems it fit to proceed to the facts that arise out of the material on record and arguments presented before it by the learned Counsel, and the law governing these facts.

15. Admittedly, the petitioner has filed an application before the Family Court, Kamrup (M) u/s 125 Cr.PC (now Section 144 BNSS, 2023) claiming maintenance from the respondent and accordingly learned Family court after hearing both sides and considering the documents regarding financial capability of the respondent to pay the maintenance, fixed the monthly maintenance @ Rs. 15,000/- in favour of the petitioner. Through this criminal revision, the petitioner has prayed for enhancement of maintenance allowance from Rs. 15,000/- to Rs. 1, 25,000/- per month. There is a specific provision in the Cr.PC i.e., Section 127 (now 146 of BNSS, 2023) for enhancement of the monthly maintenance which has not been availed by the petitioner. Having gone through the order of the Family court and the materials on record, this court does not find any reason to exercise the power of revision since the matter pertains to enhancement of monthly maintenance made by the wife. It is open for the petitioner to approach the Family court again and seek alteration of the maintenance allowance. If sufficient materials are placed before the Family court in support of such a prayer that will definitely be taken into account at the time of hearing on the issue.

16. Hence, the revision petition is dismissed, reserving the petitioner's liberty to seek remedy u/s 127 Cr.PC (section 146 of BNSS, 2023), if so advised.

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17. With the above observation, the criminal revision petition is disposed of accordingly.

18. Send back the trial court record.

JUDGE

Comparing Assistant