Gauhati High Court
Md. Shah Alom Bhuyan vs Mustt. Joyman Nessa @ Khatun And Anr on 30 January, 2025
Author: S. K. Medhi
Bench: Sanjay Kumar Medhi
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GAHC010224412022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./533/2022
MD. SHAH ALOM BHUYAN
S/O. LT. AFAJUDDIN BHUYAN, VILL. RAOUMARI GAON, P.O. ROUMARI, P.S.
TARABARI, DIST. BARPETA, ASSAM, PIN-781308.
VERSUS
MUSTT. JOYMAN NESSA @ KHATUN AND ANR.
D/O. LT. DUKHI ALI AHMED, VILL. MAJDIA, P.O. MAJDIA, P.S.
SARTHEBARI, DIST. BARPETA, PIN-781305, ASSAM.
2:THE STATE OF ASSAM
REP. BY PP
GAUHATI HIGH COURT
GUWAHATI
ASSAM
PIN-781001
Advocate for the Petitioner : MR. A K PURKAYASTHA, MR. S SHARMA,MS M BHARATI
Advocate for the Respondent : PP, ASSAM (R2), MR A HAQUE (R1),MR. B HUSSAIN (R1),MR. A
K HUSSAIN (R1)
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BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MR. JUSTICE K. SEMA
ORDER
30-01-2025
(S. K. Medhi, J)
Heard Shri A. K. Purkayastha, learned counsel for the petitioner. Also heard
Shri A. K. Hussain, learned counsel for the respondent no.1 as well as Ms. S.
Jahan, learned Addl. PP, Assam for the State respondent.
2. The instant petition has been filed under Sections 397 and 401 read with
Section 482 of the CrPC, 1973 challenging a judgment and order dated
22.08.2022 passed by the learned Family Court, Barpeta in Case No. FC (Crl)
446/2019. By the impugned order, maintenance was granted to the respondent
no. 1 under Section 125 of the CrPC by directing payment of Rs.4000/- per
month and arrear maintenance of Rs.1,40,000/-.
3. Shri Purkayastha, the learned counsel has submitted that it is not in dispute
that though the respondent no. 1 was the wife of the petitioner, the marriage
was dissolved way back in the year 1990 by a decree of divorce. He has
submitted that such decree was not put to any further challenge and has
attained finality. He contended that the application under Section 125 CrPC itself
was an afterthought and the divorce having attained finality no maintenance
could have been granted by the learned Court after a lapse of more than 29
years. He has also contended that the learned Family Court has proceeded
erroneously by relying upon certain judgments. It is also contended that the
status of the respondent was not even taken into consideration before passing
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the order of maintenance.
4. Per contra, Shri Hussain, the learned counsel for the respondent has at the
outset disputed the date of dissolution of the marriage as 1990 and contends
that the decree of divorce was in the year 1993. He submits that the right to
claim maintenance does not get extinguished by a mere decree of divorce and
Section 125 of the Cr.PC still provides the avenue for a divorced wife to claim
maintenance in an appropriate case. He has also relied upon Section 3 of the
Right to Muslim Women (Protection of Rights on Divorce) Act, 1986.
5. The rival submissions have been duly considered.
6. Chapter IX of the Cr.PC 1973 is in connection with "Order for Maintenance
of Wives, Children and Parents". Section 125 which is under the aforesaid
Chapter is the relevant provision under which the application for maintenance is
to be made. So far as the expression of "wife" is concerned, the Explanation
given in the aforesaid section makes it clear that a wife includes a woman who
has been divorced by or has obtained a divorce from her husband and has not
remarried. For ready reference the Explanation (b) is extracted herein below:-
"(b) "wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried."
7. It is not in dispute that the respondent no. 1 was the wife of the
petitioner, who however was divorced in the year 1990/1993. It is not the case
of the petitioner that the respondent no. 1 has thereafter married. The only
contention of the petitioner is that since after the decree of dissolution, the
relationship of husband and wife has severed, the respondent no. 1 shall not be
entitled to claim maintenance. The said contention apparently is contrary to the
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statutory provision more particularly the Explanation (b) to Section 125 (1) of
the Cr.PC which has been extracted above.
8. The explanation has made it clear that irrespective of the fact whether a
woman who was the wife of a man was divorced or not, unless it is the case of
the husband that the wife has remarried, such woman can claim maintenance
as the "wife" within the meaning of Section 125 CrPC.
9. That being the position, we are of the opinion that the impugned judgment
passed by the learned Family Court does not require any interference. We are
also of the view that the maintenance granted of Rs.4000/- per month is a
meagre amount in the context of the present inflation.
10. Be that as it may and in the conspectus of the discussions made, the
instant petition is dismissed.
11. The interim order of stay stands vacated.
JUDGE JUDGE
Comparing Assistant
