Gauhati High Court
Crl.Rev.P./116/2024 on 10 June, 2025
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GAHC010060762024
2025:GAU-AS:7601
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Revision Petition No. 116/2024
XXXXXX
..................Petitioner
-Versus-
1. XXXXXX
2. The State of Assam,
Represented by the learned Public Prosecutor, Assam.
...............Respondents
Advocates for the petitioner : Mr A Hussain,
Advocate for the respondent : Mr A Z Ahmed, R-1,
Mr B Sarma, Addl. P.P., Assam
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BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Hearing and Judgment : 10.06.2025
JUDGEMENT AND ORDER (ORAL)
1. Heard learned counsel, Mr A Hussain, for the petitioner, and learned counsel, Mr A Z
Ahmed, for the respondent No. 1. Also heard learned Additional Public Prosecutor, Mr B
Sarma, for the State/respondent No. 2.
2. This is an application under Sections 401/397, read with Section 482 of the Code of
Criminal Procedure, 1972 (hereinafter, for short, 'the CrPC'), challenging the Judgment and
Order dated 16.02.2024, passed by the learned CJM, South Salmara, Mankachar, in
connection with Misc Case No.50/2022. The petitioner is aggrieved as the monthly
maintenance has been enhanced from Rs. 2,000/-..to Rs. 10,000/-. The petitioner is directed
to pay Rs. 6,000/- as monthly maintenance to his first wife and Rs. 4,000/- to his second
wife.
3. It is submitted on behalf of the petitioner that the petitioner is a school teacher and his
present net salary is Rs. 33,731/-. It is submitted that the petitioner has to maintain his
sister-in-law, his three nieces and his second wife. The petitioner is at present, blessed with a
child with his second wife and he has to maintain his entire family. It is further submitted that
the petitioner is a patient of high blood pressure. These submissions were made while the
petition for enhancement of maintenance allowance was submitted by the respondent, but
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these submissions of the petitioner were not taken into consideration by the learned trial
Court, while directing the petitioner to pay the enhanced maintenance amount. It is further
submitted that the petitioner has also procured loan and he has to pay Rs 12,077/- + Rs.
4,726/- = Rs. 16,803/- as EMI for the two loans procured by the petitioner. The petitioner is
not left with sufficient amount to maintain his present family. The petitioner has also drawn
the attention of this Court to the evidence adduced by the petitioner as DW-1, wherein he
has categorically stated that he has to maintain his second wife, his sister-in-law along with
his three nieces. He has also categorically stated as DW-1 that he is a patient of high blood
pressure, piles and other diseases. He has exhibited the medical documents, in connection
with the proceedings of Misc Case No. 50/2022. He has also categorically mentioned that the
opposite party/respondent is a Ladies Tailor, who earns about Rs. 10,000-Rs. 12,000/- per
month. The petitioner has prayed to reduce the enhanced maintenance amount as his elder
brother has passed away and he has to maintain his brother's family as well.
4. Per contra, the learned counsel for the respondent has raised serious objection and has
relied on the decision of Hon'ble the Supreme Court in Amit Kapoor -Vs- Ramesh
Chander & Another; reported in (2012) 9 SCC 460, wherein it has been observed that-
"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
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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."
5. It is submitted by the learned counsel for the respondent that there is no illegality in the
order passed by the learned trial Court and the order is not required to be interfered with.
Sound reasonings have been assigned by the learned trial Court while disposing of the
petition under Section 127 of the CrPC.
6. The learned counsel for the respondent has drawn the attention of this Court to the
order of the learned trial Court, wherein it has been observed that-
"9. The provisions of Chapter IX of CrPC are a measure of social
justice. The provisions are to be liberally construed as the primary object is
to give social justice to women and children and to prevent destitution and
vagrancy by compelling those who can support those who are unable to
support themselves. These provisions provide a speedy remedy to those
who are in distress.
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10. The 'Change in the circumstances' refers to a change in the
pecuniary or other circumstances of the party paying or receiving the
allowance which would justify an increase or decrease of the amount of the
monthly payment originally fixed. Rise in the cost of living amounts to
change in circumstances entitling the wife to claim enhanced maintenance.
In a proceeding under section 127 CrPC for enhancement of maintenance,
judicial notice of inflation and rising cost of essential commodities can be
taken by the courts. Rise in the cost of living is an undisputed fact. Since the
date of the earlier order (dated-15.03.2017), till date, the cost of living has
increased substantially in these almost 7 years. Furthermore, there is a
change in the financial position/status of the 2nd party which would justify
an increase of the amount of the monthly payment originally fixed in the
earlier case. Admittedly, 1st party is a Govt. Teacher in a L.P. School. As per
the evidence of the 2nd party as DW-1 he is now getting Rs.30,000/- as
salary and as per his affidavit of assets and liabilities it is Rs.30,396/- and
prior to that he was working as a GRS and used to get Rs.12,000/- per
month as remuneration. Thus, there is an increase in the income of the 2nd
party in these 7 years, from Rs.12,000/- to Rs.30,396/-.
11. 2nd party although claimed that he has to maintain his 3 nieces
but he has failed to show how they are dependent upon him. Again, he has
deposed that he has his 2nd wife and he has to maintain his widow sister in
law. As per the affidavit of assets and liabilities also, he has his 2nd wife.
Regarding dependency of his sister-in-law upon him, he has failed to prove
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it how she is dependent upon him. His sister-in-law and his nieces are
legally not supposed to be dependent upon him."
7. It is further argued that the petitioner cannot shirk away his responsibilities to maintain
his first wife and her child by stating that he has to maintain his sister-in-law and his three
nieces, whom he is not liable to maintain.
8. The learned counsel for the respondent has also relied on the decision of Hon'ble the
Supreme Court in Rajnesh -Vs- Neha and Another; reported in (2021) 2 SCC 324,
wherein it has been observed that-
"13. Maintenance laws have been enacted as a measure of social
justice to provide recourse to dependant wives and children for their
financial support, so as to prevent them from falling into destitution and
vagrancy. Article 15(3) of the Constitution of India provides that :
"15.(3) Nothing in this article shall prevent the State from
making any special provision for women and children."
Article 15 (3) reinforced by Article 39 of the Constitution of India,
which envisages a positive role for the State in fostering change towards
the empowerment of women, led to the enactment of various legislations
from time to time.
14. Justice Krishna Iyer in his judgment in Captain Ramesh Chander
Kaushal v. Veena Kaushal & Ors., reported in (1978) 4 SCC 70, held that the
object of maintenance laws is :
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"9. This provision is a measure of social justice and specially
enacted to protect women and children and falls within the
constitutional sweep of Article 15(3) reinforced by Article 39. We have
no doubt that sections of statutes calling for construction by courts
are not petrified print but vibrant words with social functions to fulfil.
The brooding presence of the constitutional empathy for the weaker
sections like women and children must inform interpretation if it has
to have social relevance. So viewed, it is possible to be selective in
picking out that interpretation out of two alternatives which advances
the cause -- the cause of the derelicts."
9. I have considered the submissions at the Bar with circumspection.
10. I find force in the argument on behalf of the respondent.
11. Although I record my concurrence to the decision of the learned trial Court, yet I deem
it appropriate to modify the maintenance amount. It is true that sound reasonings were
ascribed by the learned trial Court while deciding the petition for enhancement under Section
127 of the CrPC. It appears that the learned trial Court has taken into consideration that the
petitioner could not prove the income of the respondent as a Ladies Tailor, through evidence
or through his pleadings. Neither any shop in the respondent No. 1's home nor any rented
shop has been pointed out by the petitioner, to prove the income of the respondent, as a
Ladies Tailor.
12. On scrutiny of the order of the learned trial Court, no error is apparent from the order
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passed by the learned trial Court. However, I have considered the last salary slip of the
petitioner and his responsibilities and liabilities. I, therefore, deem it appropriate to direct
the petitioner to pay Rs. 5,500/- per month, as maintenance to his first wife, i.e., the
respondent No. 1, and Rs. 3,500/- as maintenance to his minor daughter, instead of Rs.
6,000/-, plus Rs. 4,000/-. The appeal is partly allowed, scaling down the quantum of
maintenance, from Rs. 6,000/- to Rs. 5,500/-, and from Rs. 4,000/- to Rs. 3,500/-. The
remaining order passed by the learned trial Court in Misc Case No. 50/2022, is upheld.
13. In terms of the above observations, this criminal petition stands disposed of.
JUDGE
Comparing Assistant
