Page No.# 1/9 vs Jumi Baishya
2025 Latest Caselaw 8809 Gua

Gauhati High Court

Page No.# 1/9 vs Jumi Baishya on 24 November, 2025

                                                                     Page No.# 1/9

GAHC010172842023




                                                               2025:GAU-AS:16028

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

                         Case No. : Crl.Rev.P./306/2023

          BHABEN HALOI
          S/O LATE GOBINDA HALOI
          R/O VILL- 1 NO. NOPTIPARA, P.O. JAGARA, MOUZA- UTTAR BARKHETRI,
          P.S. MUKALMUA
          DIST. NALBARI, ASSAM-781310


          VERSUS

          JUMI BAISHYA
          W/O SRI BHABEN HALOI
          D/O SRI CHANDRAKANTA BAISHYA
          R/O VILL- JAGARA
          (THAKURDIYA OJA SUBURI), P.O. JAGARA, P.S. BELSOR,
          MOUZA- PAKOWA
          DIST. NALBARI, ASSAM-781310



Advocate for the Petitioner : MR G N SAHEWALLA, MS T J SAHEWALLA,MR M
SAHEWALLA,MR. A CHETIA,MD ASLAM

Advocate for the Respondent : MRS A K CHOUDHURY, MR D CHOUDHURY,MR M

CHOUDHURY Page No.# 2/9

BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date of Hearing : 28.10.2025

Date of Judgment : 24.11.2025

1. Heard Mr. P. Deka, learned counsel for the petitioner and also heard Mr. D. Choudhury, learned counsel for the respondent.

2. This Revision is directed against the judgement and order dated

23.06.2023 passed in F.C. No. 106C/2022 by the learned Principal Judge, Family Court, Nalbari whereby and whereunder the learned Principal Judge, Family Court, Nalbari while allowing the application filed under Section 125 if the Cr.P.C by the respondent directed the petitioner to pay Rs. 6,000/- per month to the respondent towards maintenance allowance from the date for filing the original application under Section 125 of the Cr.P.C.

3. The brief facts of the case leading to the filing of the application under Section 135 Cr.P.C by the respondent herein are as follows:-

The first party's/(Respondent herein) case, in brief, is that after the death of her former husband she along with her minor daughter aged about 10 years was residing in her father's house. Then the second party/(Petitioner herein) proposed to marry her and promised that he would keep her daughter as his own child and would take care of her overall welfare. The wife of the second party also expired. The first party being convinced by the said promise of the second party decided to marry the second party. Accordingly, on 13.09.2021 they entered into a marriage agreement before the Notary Public, Nalbari vide Page No.# 3/9

R/No.475, SI No. 05. Thereafter, the second party married her observing the religious rites, and took the first party to his cohabitation. The first party further averred that after marriage, the second party kept her very well by giving the complete status of his wife. But, after four months of marriage, the second party and his son Ashim Haloi started torturing the first party and her minor daughter. Even the second party insulted the first party in the presence of her daughter. She endured all such torture silently in order to save the marriage but on 12.04.2022 the second party and his son Ashim Kumar Haloi tortured the first party and her daughter physically and mentally and at about 10 AM drove them out of their house and threatened that if they returned home again, they would kill her daughter. Having found no other alternative, she took shelter in her father's house. The first party further averred that due to her second marriage with the second party, she has lost all the rights to the property of her former husband. Since the day she has been staying in her father's house, the second party has not taken any information about them nor has paid anything to them for their maintenance. The first party does not have any income while the second party is an able-bodied person and is a government employee and gets Rs.48,000/- per month as salary. The first party has been spending her days miserably with her child. With the above, she has prayed for a maintenance allowance for herself and her minor daughter.

On receipt of the notice the second party entered his appearance and contested the case by submitting a written statement wherein he averred that the first party is a person of immoral character. It is admitted that on 13.09.2021 he and the first party entered into a marriage agreement before the Notary Public, Nabari. He denied the performing of any social marriage with the first party observing rites and rituals. He has admitted that he is a government Page No.# 4/9

employee. It is further contended that since there was no social marriage, the question of giving the status of his wife to the first party does not arise. The second party further stated that after the execution of the marriage agreement, he took the first party to his house and gave shelter as a relative, and subsequently when he was planning to marry the first party after observing social formalities, the first party left his house along with her child and went to her mother's house. The social formalities, the first party left his house along with her child and went to her mother's house. The second party denied all the allegations leveled by the first party against him and his son Ashim Kumar Haloi and it is contended that they never tortured the first party and her child. The first party is the legal heir of all the properties left by her deceased husband. It is further contended that the first party by doing various works and maintaining illicit relationships with many persons earns money. The second party denied his income as Rs.48,000/- per month as alleged by the first party. It is contended that out of his salary income, he has to pay the daily fare for his to and fro journey from Guwahati, he has to maintain his treatment-related expenditure, the cost of education of his younger son and has to pay EMI of loans. With the above, the second party has prayed for the dismissal of the case of the first party.

4. Aforesaid conciliation having failed the case proceeded for trial resulting in the impugned judgement and order whereby the petitioner has been directed to payment of Rs. 6,000/- per month for the maintenance of respondent and her minor child.

5. I have heard Mr. Deka learned counsel for the petitioner and Mr. Choudhury learned counsel or the respondent.

Page No.# 5/9

6. The short question for decision in the instant revision is whether the impugned judgment and order is rendered illegal on account of the non-filing/ of statements of assets and liabilities by either party.

7. A perusal of the record would show that the petitioner had filed her statement of assets and liabilities at or about the time of filing the application under Section 125 Cr.P.C. seeking maintenance.

8. The learned counsel for the petitioner admitted that the respondent/first party had submitted her affidavit of assets and liabilities but such filing was done prior to the institution of the application for maintenance.

9. A perusal of the record would show that the application for maintenance was filed on 24.08.2022 as reflected by the acknowledgement of the Family Court, Nalbari as well as the order dated 24.08.2022 passed by the Principal Judge, Family Court. There is no other date available on the affidavit of assets and liabilities save and accept the date of notarisation i.e. 22.08.2022. A document can be notarised on a date prior to its filing and on that basis it cannot be held that the same was submitted prior to the filing of the case, which is itself is an absurd proposition. Therefore, regardless of the permissibility or otherwise of such a course of action, I do not find any substance in the submission of learned counsel for the petitioner in this regard.

10. In Rajnesh Vs. Neha and Anr. reported in (2021) 2 SCC 324 cited by the learned counsel for the petitioner, it has been held at paragraph 72.2 and 72.3 as follows.

"72.2.(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets.

Page No.# 6/9

72.3(C) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks, The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings43. On the failure to file the affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record;"

11. From the above, it is apparent that the learned Court must fix a date for submission of the Disclosure affidavit which date must be confined to a maximum period of 4 (four) weeks, after which not more than two opportunities may be granted for submission of the said affidavit of Disclosure of Assets and Liabilities.

12. A perusal of the order sheet of the Principal Judge, Family Court, Nalbari would reveal that the notice to the second party was issued on 24.08.2022 whereafter the second party/petitioner appeared and sought time to file WS on 26.09.2022 and also on 04.11.2022 and ultimately submitted his written statement on 28.01.2022 and by order passed on the said date the case was referred to the counsellor in order to allow the parties to settle their differences amicably. Accordingly, the parties have appeared before the learned counsellor, Family Court at Nalbari on 28.11.2022 itself and thereafter, for a second time on 13.12.2022. But since the settlement could not be arrived at, the same was referred back to the Court which received back the record on 19.01.2023 and Page No.# 7/9

the learned Court fixed the next date i.e. 02.02.2023 for P.W.s and accordingly on the said date evidence of witnesses from both sides were recorded. Subsequently, further dates were fixed for evidence and on completion thereof the learned Court heard the parties and passed the impugned judgement and order.

13. Therefore, it is apparent from the order dated 09.01.2023 itself that after receiving back the case from the learned counsellor, without granting any opportunity to the petitioner/second party to submit his disclosures affidavit of assets and liabilities, the matter was straight way fixed for evidence.

14. A perusal of the record would show that at no point of time subsequently was any further opportunity granted to the petitioner/second party to file the said document.

15. The Hon'ble Supreme Court in the case Aditi alias Mithi Vs Jitesh Sharma reported in 2023 SCC OnLine SC 1451 held as follows:-

"I4. Nothing is evident from the record or even pointed out by the learned counsel for the appellant at the time of hearing that affidavits were filed by both the parties in terms of judgment of this Court in Rajnesh's case (supra), which was directed to be communicated to all the High Courts for further circulation to all the Judicial Officers for awareness and implementation. The case in hand is not in isolation. Even after pronouncement of the aforesaid judgment, this Court is still coming across number of cases decided by the courts below fixing maintenance, either interim or final. without their being any affidavit on record filed by the parties. Apparently, the officers concerned have failed to take notice of the guidelines issued by this court for expeditious disposal of Page No.# 8/9

cases involving grant of maintenance. Comprehensive guidelines were issued pertaining to overlapping jurisdiction among courts when concurrent remedies for grant of maintenance are available under the Special Marriage Act, 1954, Section 125 Cr.P.C.. the Protection of Women from Domestic Violence Act. 2005. Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956 and Criteria for determining quantum of maintenance is to be awarded, enforcement of orders of maintenance including fixing payment of interim maintenance. As a result, the litigation which should close at the trial level is taken up to this Court and the parties are forced to litigate.

16. Considering the facts of the case in hand and the other similar cases coming across before this Court not adhering to the guidelines given in Rajnesh's case (supra), we deem it appropriate to direct the Secretary General of this Court to re-circulate the aforesaid judgment not only to all the Judicial Officers through the High Courts concerned but also to the National Judicial Academy and the State Judicial Academies. to be taken note of during the training programmes as well."

16. From the above, it becomes crystal clear that the impugned judgement and order has been passed without adhering to the directions of the Supreme Court in the case of Rajnesh (supra). Furthermore, the impugned judgement and order has not touched upon this aspect of the matter at all.

17. In View of what has been discussed above, the impugned judgment and order is set aside and the matter is remanded to the learned Family Court for a fresh decision in the light of the aforesaid observations and in compliance with the decisions of Hon'ble Supreme Court cited above.

Page No.# 9/9

18. Further, it is expected that all efforts will be made to dispose of the mater at the earliest and pending such disposal the petitioner/second party shall continue to pay an amount of Rs. 5,000/- per month as maintenance to the respondents/second party for her maintenance as well as that of her child.

19. The revision petition stands disposed of accordingly.

JUDGE

Comparing Assistant