Crl.Rev.P./516/2023
2025 Latest Caselaw 6998 Gua

Gauhati High Court

Crl.Rev.P./516/2023 on 4 September, 2025

   GAHC010260952023




                                                   2025:GAU-AS:12040

               IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)



                        CRL.REV.PET.NO. 516 OF 2023

                        Sh. Tarun Dutta,
                        Aged about 53 years,
                        S/o- Late Lilakanta Dutta,
                        Residence of Ward No. 09, Santipath,
                        North Lakhimpur Town, P.S.- North
                        Lakhimpur, District-Lakhimpur, Assam.

                                                     ........Petitioner

                                  -Versus-

                      1. State of Assam,
                         Through the Public Prosecutor, Assam.

                      2. Smti. Sunita Dutta,
                         Aged about 41 years,
                         W/o- Tarun Dutta, D/o Dhiren Kumar Dutta,
                         Residence of Ward No. 14,
                         Khelmati, North Lakhimpur Town, P.S.-
                         North Lakhimpur, District-Lakhimpur, Assam.


                                                  ........Respondents




                                                           Page 1 of 16
                           -BEFORE-

          HON'BLE MRS. JUSTICE SHAMIMA JAHAN

For the Petitioner      : Mr. U. Dutta, Advocate

For the Respondents     : Mr. P. Borthakur
                          Addl. Public Prosecutor, Assam.

Dates of Hearing        : 28.08.2025, 04.09.2025

Date of Judgment        : 04.09.2025



                   JUDGMENT & ORDER (ORAL)

Heard Mr. U. Dutta learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Addl. Public Prosecutor for the State respondent and Ms. A. Baruah, learned counsel for the respondent No. 2.

2. This is an application filed under Section 397 of the Cr.PC read with Section 401 of the said code challenging the Judgment & Order dated 15.09.2023 passed by the learned Judicial Magistrate First Class, Lakhimpur, North Lakhimpur in Misc. Case No. 43/2022. By the said Order dated 15.09.2023, the petitioner was directed to pay maintenance allowance of Rs. 12,000/- to both the wife and the daughter of the petitioner by segregating the said amount to the tune of Rs. 7,000/- to the wife of the petitioner and Rs. 5,000/- to the minor daughter of the petitioner from the date of filing of the petition.

FACTS

3. The facts of the case are that the petitioner and respondent No. 2 got married on 11.12.2004 and a child was born out of the said wedlock on 23.01.2006. It is the case of the respondent No. 2 that her husband, i.e., the petitioner after her marriage, treated her with cruelty both physically and mentally and quarreled with her after consumption of alcohol and that he used to beat her, squeezed her neck and throws her out of the house at night. It is the further case that the husband of the petitioner, after 7 years of marriage drove out respondent No. 2 from the matrimonial house alongwith her minor child on 24.01.2011 and as such, the respondent No. 2 left to her parental house and further, due to some inconvenience, the respondent No. 2 further left her parental house on 01.12.2019 and was staying at a rented place. It is the pleaded case that the respondent No. 2 had never claimed maintenance for her or to her minor daughter since the day she left her matrimonial house, since she had her own source of income as she was running a restaurant in her name. However, later, she was left with no income and her daughter had also reached Class-X and due to financial hardship, the respondent No. 2 filed an application before the Chief Judicial Magistrate, Lakhimpur, North Lakhimpur claiming maintenance to her and her daughter. The respondent No. 2 had filed the application for maintenance on 13.06.2022. The said application was heard by the learned Judicial Magistrate

First Class, Lakhimpur, North Lakhimpur and the order was passed on 15.09.2023. The learned Magistrate, by the said order had formulated 3 (three) points for determination:-

1). Whether the respondent No. 2 has just and valid reason to live separately.

2). Whether the respondent No. 2 is unable to maintain herself and whether the petitioner having sufficient means has refused or neglected to maintain the respondent No. 2 and her minor daughter.

3). Whether the respondent No. 2 and her minor daughter are entitled to maintenance and if so, what should be the quantum of maintenance.

4. With regard to the first point, the learned Court, after taking evidence of 3 Prosecution Witnesses and 3 Defence Witnesses had observed the following:-

a) Respondent No. 2 and her minor daughter was staying at a rented place and that respondent No. 2 has no income source and that since Section 125 Cr.PC is enacted to protect woman and children from vagrancy and destitution, maintenance is provided for and it is the duty of the husband to maintain the wife and children.

b) Respondent No. 2, by deposing as PW-1 had stated that mental and physical torture was meted on her and

due to repeated torture, she had to leave her matrimonial house with her minor daughter on 24.01.2011. The said fact was supported by the other 2 witnesses, i.e., the mother of respondent No. 2 and respondent No. 3, i.e., an independent witness.

c) Although evidence was adduced by the petitioner alongwith the other witnesses that respondent No. 2 had gone out of the matrimonial house without any sufficient reason, however, the same was not accepted, in view of the evidence given by the respondent No. 2 as well as on the findings that no wife would leave her matrimonial house without any reason. By complying with the rule of preponderance of probability that the respondent No. 2 had to leave the matrimonial house due to mental torture and also due to the fact that the petitioner could not explain the reason of separation from his wife after 7 (seven) years of co-habitation, the learned Court had returned the finding that the respondent No. 2 had just and sufficient ground to leave the petitioner.

5. On the second issue that the respondent No. 2 was unable to maintain herself and that the petitioner had sufficient means and even then, he had refused or neglected the respondent No. 2 and his daughter, the learned Court had observed the following:-

a) The respondent No. 2 and her daughter although were staying at a rented house but the respondent No. 2 had enough income initially after she came out of her matrimonial house but later, she faced financial constraints and approached the Court for maintenance.

b) The learned Court had further observed that even if the wife has some income, still she is entitled for maintenance as held by the Hon‟ble Supreme Court.

c) Further, the Court held on the basis of the affidavit of asset and liability filed by the petitioner that the petitioner has sufficient income and also that the respondent No. 2 and her daughter was facing financial difficulties and as such, issue No. 2 was decided in favour of the respondent No. 2.

6. With regard to the third issue as to whether the respondent No. 2 and her minor daughter are entitled to maintenance and if so, what would be the quantum, the learned Court had held that since the petitioner has sufficient income and cannot get rid of his responsibility of maintaining his wife and his minor child had concluded that the petitioner has to pay maintenance to his wife and his minor daughter and fixed the quantum at Rs. 12,000/- p.m, Rs. 5,000/- to his minor daughter and Rs. 7,000/- to his wife.

7. Against this order, the petitioner, i.e., the husband of the respondent No. 2 has filed this Criminal Revision Petition before this Court mainly on the ground that respondent No. 2 had left the house of the petitioner without any sufficient cause and reason, for which respondent No. 2 is not entitled for any maintenance.

8. Section 125 of the Cr.PC provides that maintenance are required to be given to the wife, children and parents and it is further provided in the said section that if the husband offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider the grounds of refusal stated by her and make an order under the said section notwithstanding such offer if he is satisfied that there is just grounds for such doing. It is also provided in Section 125(4) of the Cr.PC that no wife is entitled for any maintenance from her husband if she leaves in adultery or if without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.

9. In Deb Narayan Halder Vs. Smt. Anushree, reported in (2003) 11 SCC 303 the Hon‟ble Supreme Court has made the following observations;

"18. From the evidence on record we are satisfied that the findings recorded by the learned Magistrate were fully justified as they were based on the evidence on record and appear to us to be reasonable. In her application the respondent had given two reasons for her ill treatment by the appellant namely his greed for dowry and that she was not good looking. So far the second

reason is concerned, in the course of her deposition, the respondent has not said a word about it. So far as the first reason is concerned, on a careful scrutiny of the evidence on record, we have also come to the conclusion that no dowry was ever demanded either before the marriage or after the marriage. Even PW-2, the mother of the respondent had to admit that the appellant had never demanded any dowry or gift. Of course she added that all this was in his mind. We are, therefore, satisfied that the Trial Court properly appreciated the evidence on record while recording the finding that there was never any demand for dowry by the appellant. There was, therefore, no reason for him to ill-treat his wife for this reason. We, therefore, find that both the reasons given in the application for her ill treatment are non-existent."

10. It is noticed that the learned Judicial Magistrate First Class, Lakhimpur, North Lakhimpur has taken into account the evidence given by 3 Prosecution Witnesses. PW-1 was the respondent No. 2 herself, who had stated that the petitioner had chased out respondent No. 2 and her minor daughter from his house and the respondent No. 2, without left with any alternative, left the house on 24.01.2011 with her minor daughter. Similar statement was also made by PW-2 namely Bina Pani Dutta, who is the mother of PW-1 and she, in her evidence on affidavit had stated the same fact and the lines are also same and were in the same language that the petitioner has chased out respondent No. 2 and her minor daughter because of which, the respondent No. 2 had to leave her matrimonial house with her minor daughter.

11. It is also noticed that PW-3, who is Smt. Niva Rani Bora, who is the acquaintance of respondent No. 2 had also made similar statement in the same language in her evidence in affidavit that the petitioner had chased out, as a result of which

the respondent No. 2 had to leave her matrimonial house alongwith her minor daughter. These statements were relied on by the learned Court below. The learned Court had also reached to a finding that no woman will leave her matrimonial house without any sufficient reason.

12. Yet another statement was made by all the 3 Prosecution Witnesses in the same language with the same words and they are stated at Sl. No. 3 of their statements by which they stated that the petitioner after the marriage, had tortured the victim after taking alcohol and that by closing the door of the house, the petitioner chases them out, i.e., both the victim and her daughter. This statement was stated by all the 3 Prosecution Witnesses in the same words, which shows that it was simply copied and pasted. This cannot inspire the confidence of the Court regarding the act of the petitioner.

13. It is also the case of the petitioner that the respondent No. 2 had left him not from his house, but from the house of his brother and she was taken by her mother and her brother and that, respondent No. 2 while leaving the house of his brother had stated that she will come back within 2 days time but she did not come back as per her assurance. The petitioner also stated that he made repeated request to respondent No. 2 to come back to her matrimonial house but she never came back.

14. It is also the case of the petitioner that on 26.01.2022, the petitioner alongwith other persons went to the parental house of respondent No. 2 to bring her back but respondent No. 2 did not come back. On earlier occasions too, i.e., on 01.02.2011, the petitioner sent his colleague to the parental house of respondent No. 2 but the said endeavor did not result in any positive action on the part of the respondent No. 2. Leaving with no other alternatives, the petitioner has sent a legal notice to the respondent No. 2, asking her to come back to her matrimonial house but she neither came back nor replied to the said legal notice. The petitioner had also made a representation before Nari Suraksha Samiti and the authorities of the said Samiti approached respondent No. 2 for her return to her matrimonial house but respondent No.2 refused to come back and joined the petitioner in his conjugal life. As such, the petitioner has stated that the respondent No. 2 had left his house without any sufficient cause and all his efforts to bring her back failed.

15. The petitioner had also adduced his evidence as DW-1, wherein he stated the above facts alongwith the further facts that it was respondent No. 2 who used to abuse him in public and that he had never misbehaved with her and in view of the same, he also stated that the respondent No. 2 as well as other witnesses could not specify any date and time as to when he tortured respondent No. 2 or done any illegal act upon her. Apart from the petitioner as DW-1, there were 2 more witnesses, namely Kumud

Chandra Koch as well as Gautam Das, who had supported the version of the petitioner.

16. It is no res-integra that the Court has to determine the term "sufficient cause" on specific facts and circumstances of each case. Although the Court does not out rightly deny maintenance, however, on critical analysis of the facts and circumstances, which clearly shows that the wife had deserted the husband and had left his place without any valid reason or simply on the fact that she is not happy staying with the husband, the Court can, in the said circumstances deny maintenance to the wife.

17. Mr. U. Dutta learned counsel for the petitioner submits that the main ground of contention between the petitioner and the respondent No. 2 is that the respondent No. 2 was not willing to word in the Anganwadi School, which was within the campus of the petitioner where the respondent No. 2 was a teacher in the said School and was drawing a salary there from, but the respondent No. 2 was not satisfied with the job and that she wanted to join in the dealership of Maruti Suzuki Show Room, to which the petitioner as well as his family members were not willing to let her join and that resulted in a dispute between the parties concerned.

18. According to the learned counsel for the petitioner, that cannot be a ground to leave the matrimonial house of the petitioner and according to him, this cannot be a sufficient ground

too, as required under Section 125 of the Cr.PC. He further stated that the petitioner had tried his best to bring the respondent No. 2 to his home but she never came back as stated above. He further stated that the petitioner had been paying maintenance to his minor daughter as directed by the learned Court without fail but since the respondent No. 2 had deserted him without any reason, he had approached this Court by filing this instant petition.

19. Ms. A. Baruah, learned counsel for the respondent No. 2 however submits that the respondent No. 2 and her mother and an independent witness have stated and had given evidence that the petitioner had tortured the respondent No. 2 after taking alcohol and that he chased her out on 24.01.2011. She submits that the petitioner had not denied the statements of Respondent No. 2 & Others during his evidence before the learned Court. She also submits that the petitioner had although stated that he alongwith 2 others went to the house of respondent No. 2 to request her to come back to his house but the said other persons, who accompanied the petitioner were not arrayed as witnesses and were neither examined during the proceedings. She as such submitted that the maintenance allowed to the respondent No. 2 is correct, in view of the evidence on records. To substantiate her arguments, she has placed reliance on a Judgment passed by the Hon‟ble Supreme Court in Reena Kumari Vs. Dinesh Kumar Mahato, delivered on 10.01.2025.

ANALYSIS

20. It is apposite to quote Section 125(4) of the Cr.PC;

"No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

21. It is clear from the above that if a wife leaves the matrimonial home without a valid or sufficient reason, the Court may deny her maintenance under the above section and the term „sufficient reason‟ is determined by the Court on facts and circumstances of each case.

22. In the instant case, it is seen that the respondent No. 2 had stated before the Trial Court that she was tortured by the petitioner after taking alcohol and that she was left to stay outside her house on many occasions. However, the respondent No. 2, while giving her statement had not stated about that specifically, neither she has lodged any complaints or case before the authorities concerned or complained to anyone.

23. Further, the statement made in the affidavit about the alleged torture, in the same words and in the same language as that of the other Prosecution Witnesses, raises doubt about the authenticity of the said claims made by the respondent No. 2. Further, it is also seen that the respondent No. 2 did not file any petition for maintenance of herself or her daughter after leaving

the matrimonial house in the year 2011 and that she filed it in 2022, and the same also shows that she was not made to leave her matrimonial house by petitioner forcibly during 2011.

24. It is a settled position of law that even if the wife earns money, yet the husband is required to provide maintenance to his wife but respondent No. 2 never claimed maintenance on her leaving the matrimonial house and that after more than 10 years, she filed the maintenance application. It is also seen in the evidence that respondent No. 2 assured that she would come back within a specified period of time but she did not come back and she had not explained her non-coming for over so many years.

25. Further, it is also not the case that the respondent No. 2 was not allowed to work as could be seen from above which would force her to leave her matrimonial house. Since it is observed by the Hon‟ble Supreme Court that in peculiar facts and circumstances of the case, Section 125(4) Cr.PC can be attracted, this Court observed that the same has been attracted in the instant case and it is seen that the respondent No. 2 had left the petitioner without any sufficient reason.

26. It is also seen that apart from the petitioner, No. 2 other witnesses have given their statements, wherein they have stated that there was no torture meted out to the respondent No. 2 by the petitioner and that many times the petitioner alongwith others

had gone to the house of the respondent No. 2 to bring her back to her matrimonial house for re-starting the conjugal life again but the same was rejected by the respondent No. 2 on the said occasions. In this context, a judgment passed by Chattisgarh High Court in Shiv Kumar Yadav Vs. Santoshii Yadav, reported in 2004 (2) C.G.L.J 204 may be referred and the relevant portion is quoted below:-

"In view of the above evidence on record, the petitioner herein Shiv Kumar filed the petition under Section 98 of the Cr.P.C., before the S.D.M Court to bring Santoshi Bai to his house, but in that petition Santoshi Bai deposed before the SDM that she does not want to go to her in-laws house even if he assures that he will not demand of dowry, harass and beat. The charges levelled by Santoshi Bai have been denied by Shiv Kumar - husband of the respondent and specific charges levelled by Santoshi Bai for living separately, she has not been able to prove these charges More- over she led evidence contrary to the allegations levelled against him in the petition itself. The petitioner has been able to discharge his burden as he filed the petition for bringing her to his house, but she had declined to come to his house. Moreover, he went to village Bhinpuri to bring his wife, but she was not there and even as per the evidence of Siyaram Yadav, the grand father of Santoshi Bai, he has stated that after Teeja festival, when he went to drop her at her in-laws house, she was not prepared to stay there and she started saying that she would not stay here, then he advised her to stay there. Thereafter, with great difficulty she stayed at her in- laws house for 15 days and came to Bemetara and she was residing with her maternal grandmother, where her mother was also residing. 11. In view of the above, Shiv Kumar, husband of Santoshi Bai has been able to discharge his primary burden that Santoshi Bai is residing separately without any

sufficient reason and Santoshi Bai has not been able to establish and prove her case. Therefore, the finding of the learned 3rd Additional Sessions Judge that there is sufficient reason for Santoshi Bai to live separately is perverse and contrary to the evidence available on record, which cannot be sustained for the reasons mentioned hereinbefore this order 12. In the result, the revision of the petitioner is allowed and the impugned order of the learned 3rd Additional Sessions Judge (FTC) Bemetara dated 18.10.2003 is set aside and that of the learned Judicial Magistrate First Class, Bemetara, is restored."

27. In view of the said discussions, this Court observes that respondent No. 2 is not entitled for any maintenance under Section 125 Cr.PC, in view of the fact that she had left her matrimonial house without any sufficient cause. However, the order of the learned Trial Court, by which maintenance was awarded to the minor daughter of the petitioner the same is maintained and that the petitioner is directed to pay the maintenance to his minor daughter regularly @ Rs. 5,000/- per month and should also clear whatever amount is left to be paid till date.

28. Accordingly, the Criminal Revision Petition is partly allowed and disposed of.

29. Send back the TCR.

JUDGE

Comparing Assistant