Smt. Kripa Rani Debbarma vs Permanent Address
2021 Latest Caselaw 157 Tri

                         HIGH COURT OF TRIPURA
                               AGARTALA
                             Crl. Rev. P. 76 of 2019


1. Smt. Kripa Rani Debbarma,
   Wife of Sri Shymal Tripura,
   Daughter of Sri Nilo Debbarma
   Resident of Bishramganj, Guliraibari,
   PS: Bishramganj,
   District- Seahijala Tripura.
2. Rasmi Tripura (minor)
3. Rajbir Tripura (minor)
   Both are daughter of Sri Shymal Tripura
   Resident of Bishramganj, Guliraibari,
   P.S-Bishramganj, District-Sepahijala Tripura

                                                        --- Petitioner(s)

                                    Versus

   Sri Shymal Tripura
   Son of Sri Suryasen Tripura
   C/O Biman Naha
   Resident of Krishna Nagar,
   Durgachowmuhani
   Opposite of Ramnagar Road No.-7,
   Agartala, District-West Tripura

   Permanent Address:
   Bortali, Surendra Sardar Para,
   P.S-Manu, Sabroom,
   District-South Tripura
                                                   ---- Respondent(s)

   For Petitioner(s)             : Mr. Samar Das, Adv.

   For Respondent(s)             : Mr. K.K. Pal, Adv.

   Date of hearing               : 07.01.2021

   Date of pronouncement : 10.02.2021

                                      Yes   No
   Whether fit for reporting :
                                            √



   Crl. Rev. P. 76 of 2019





                                BEFORE
      HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                    Judgment                & Order

[1]            This   criminal    revision      petition    has   been     filed

challenging the judgment dated 15.07.2019 delivered in case

No. Misc. 516 of 2016 by the Additional Judge, Family Court,

Agartala in a proceeding under section 125 of the Code of

Criminal Procedure, 1973 (Cr.P.C in short) whereby the

respondent (husband hereinafter) was directed to pay

Rs.3,000/- (Rupees three thousand) for each of his daughter

Rasmi Tripura and son Rajbir Tripura towards their

maintenance. Maintenance allowance having been denied to the

wife, she has challenged the impugned judgment of the Family

Court in this criminal revision petition.

[2] Brief facts of the case are as under:

The wife filed an application under section 125

Cr.P.C in the Family Court at Agartala claiming maintenance

allowance @ Rs.15,000/- (Rupees fifteen thousand) per month

for the maintenance of herself and her son and daughter. In her

said application, she stated that her marriage with the

respondent was solemnized on 13.06.2007 in accordance with

the rites and customs of the Hindu marriage and during their

marriage her parents gave Rs.60,000/- (Rupees sixty

Crl. Rev. P. 76 of 2019

thousand) in cash to the husband and also gave ornaments,

furniture, refrigerator, utensils etc of huge value pursuant to

the demand of her husband. After marriage, she accompanied

her husband to her matrimonial home and lived a conjugal life

with him for about 2 (two) months at Bishramganj in Sepahijala

District. Thereafter the husband changed his place of residence

from Bishramganj to Agartala for his occupational purpose

where the husband and wife started living together in a rented

house. A few days thereafter, her husband started subjecting

her to torture for dowry. He started extracting money ranging

from Rs.5,000/- to Rs.10,000/- every month from her father

though he was earning not less than Rs.30,000/- (Rupees thirty

thousand) per month from private tuition by giving tuition to

the students of various English medium schools including Holy

Cross School, Auxilium Girls' School, Don Bosco School etc.

Apart from his income from private tuition, he also owned huge

landed property including a rubber garden on 30 acres' of land

in his own name at Sabroom. Despite the differences and

disputes between them, the wife conceived and delivered a

daughter in 2008. Even after the birth of their daughter the

husband continued torturing her. The husband also became

alcoholic by that time. When they were living in a rented house

at Agartala in 2012, the husband developed illicit relationship

with their maid servant from November 2015. On a day in the

Crl. Rev. P. 76 of 2019

month of Janurary, 2016, the wife discovered them in

compromising position. When she raised protest she was

beaten up by her husband. At that time the wife was carrying

her second pregnancy. On 26th April, 2016 she left her

matrimonial home along with her daughter for her parental

home at Bishramganj. On 28th June, 2016 she reported the

incidents of atrocities of her husband to police. She also

reported the matter to the State Commission for Women. On

18th August, 2016 she gave birth to a son at the District

Hospital at Udaipur in Gomati District. The wife had no source

of income for maintenance of her children as well as of herself.

Her husband on the other hand had a handsome monthly

income from private tuition and properties. The wife, therefore,

approached the Family court, Agartala claiming Rs.15,000/-

(Rupees fifteen thousand) per month for their maintenance.

[3] When notice was issued to the husband from the

Family court, he appeared in court and filed written objection

against the claim of his wife. He admitted his marriage with the

petitioner and paternity of the daughter. But he denied the

paternity of the son and claimed that when she conceived

second time he had no access to her. It was further stated by

the husband that during her second pregnancy when she was

living with her parents at Bishramganh, the husband sent a

messenger to her requesting her to come back. She refused

Crl. Rev. P. 76 of 2019

and informed him through the messenger that a tumor

developed in her stomach and for this reason she was unable to

come back to him. The wife thus concealed her pregnancy

which created doubts about his paternity of the son. He alleged

that his wife never maintained a good relationship with him.

According to him, he purchased a rubber garden with his

savings from private tuition in the name of his wife which was

sold out by her. Thereafter they had undertaken various

businesses together including a poultry farm and manufacture

and sale of garments. All those businesses were carried out in

the parental house of the wife in her name and the wife used to

look after those businesses and keep the profits in her

accounts. He denied her allegations of misbehavior. He also

denied to have developed illicit relationship with the maid

servant. Rather, it was alleged by him that the wife engaged

the maid servant for her own convenience and he had no time

to make an affair with her, because he used to work from dawn

till night to earn bread for the family. It was further alleged by

the husband that the wife, during the period of her stay with

him at Agartala, had taken loan from many people beyond his

knowledge. Thereafter she left for her matrimonial home at

Bishramganj without repaying such loan. After his wife left, the

people from whom she borrowed money assembled in his house

at Agartala and demanded repayment of their loan. One of

Crl. Rev. P. 76 of 2019

them also filed a case against his wife under the Negotiable

Instrument Act claiming the refund of loan. This apart, their

maid servant Smt. Laxmi Malakar also filed FIR against the wife

at East Agartala police station. It was alleged by her husband

that in fear of the consequence of her misdeeds, she took

shelter with her parents at Bishramganj. She did not return

even after the husband requested her to come back. According

to the husband, he earns not more than Rs.6000/- (Rupees six

thousand) per month from his private tuition. His wife on the

other hand has huge amount of monthly income from her

business at Bishramganj. The husband, therefore, refused to

provide any maintenance allowance to his wife and the son.

[4] In the course of trial the wife examined herself as

PW-1, her father Sri Nilo Debbarma as PW-2.

[5] The husband on the other hand examined himself

as OPW-1. No other witness was examined on his behalf.

[6] On appreciation of evidence, the learned Additional

Judge, Family Court, Agartala came to the conclusion that the

wife was an earning lady whose monthly income from business

ranged from Rs.5,000/- to Rs.7,000/-. As a result, maintenance

allowance was denied to her. The learned Additional Judge,

Family Court, however, after considering the evidence and the

facts and circumstances of the case, granted monthly

maintenance allowance to the children and directed the

Crl. Rev. P. 76 of 2019

husband to pay Rs.3,000/- (Rupees three thousand) per month

for each of his 2 (two) children.

[7] Having been aggrieved with the order of refusal of

maintenance allowance to her, the wife has filed this criminal

revision petition challenging the judgment and order of the

Family court.

[8] Heard Mr. Samar Das, learned counsel appearing

for the wife as well as Mr. K.K. Pal, learned advocate

representing the husband.

[9] Appearing for the wife, Mr. Samar Das, learned

counsel has contended that the trial court has failed to

appreciate the facts and circumstances of the case from the

right perspective and committed serious error in refusing

maintenance allowance to the wife. According to Mr. Das,

learned counsel, the efforts made by the wife after her

desertion for survival cannot be taken into consideration to

determine her ability to maintain herself. "Unable to maintain

herself" appearing under section 125, Cr.P.C would depend on

the means available to the wife while she was living with her

husband. In support of his contention Mr. Das, learned

advocate has referred to the decision of the Apex Court in

Chaturbhuj Vs. Sita Bai reported in (2008) 2 SCC 316 wherein

the Apex Court has held as under:

Crl. Rev. P. 76 of 2019

"6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636."[Emphasis supplied]

[10] It is argued by Mr. Das, learned counsel of the wife

that the wife has proved the various incidents of atrocities and

torture mated out to her by her husband which compelled her

to part with his company despite her haplessness. Further

Crl. Rev. P. 76 of 2019

submission of Mr. Das, learned counsel is that the husband has

admitted that admittedly the husband is an educated person

and he is having income from his private tuition and other

properties. In these circumstances, the trial court should not

have refused maintenance allowance to the wife.

[11] Mr. K.K. Pal, learned counsel appearing for the

husband on the other hand submits that the husband has been

able to prove by adducing sufficient evidence that his wife

brought all these allegations against him to get rid of her

misdeeds. According to Mr. Pal, learned counsel of the husband,

the wife could not produce any document with regard to the

income of her husband. Rather it has been proved before the

Family court that she owns several businesses from which she

earns about Rs.7,000/- (Rupees seven thousand) per month

and therefore she cannot be said to be unable to maintain

herself. It is, therefore, argued by Mr. Pal, learned counsel that

the Family court has rightly denied maintenance allowance to

her and the judgment of the Family court does not call for any

interference in this revision petition.

[12] In her evidence at the trial court the petitioner wife

has supported her plaint case. She has reiterated in her

evidence that she parted with the company of her husband

under compelling circumstances. According to her she was

severely tortured by her husband which compelled her to leave

Crl. Rev. P. 76 of 2019

him. She has also asserted in her evidence that monthly income

of her husband is around Rs.20,000/- (Rupees twenty

thousand) per month. Though she claimed Rs.15,000/- (Rupees

fifteen thousand) in her petition, in her testimony in court, she

claimed Rs.10,000/- (Rupees ten thousand) per month.

In cross examination, she admitted that the son

was born to her when she was living with her parents. She

denied to have borrowed loan from others and she also denied

to have issued any cheque to her creditors. She also denied in

cross that she fled from Agartala in fear of her creditors. She

denied to have monthly income of Rs.15,000/- (Rupees fifteen

thousand).

[13] Her father Sri Nilo Debbarma [PW-2] also supported

the case of his daughter. He told the trial court that following

the quarrel with her husband, she left her husband and

returned to her parental home at Bishramganj. He admitted

that his daughter was running a business at Bishramganj from

which she had a monthly income of about Rs.7,000/- (Rupees

seven thousand). He also admitted that the land where they

constructed their house at Bishramganj also belonged to the

husband of his petitioner daughter.

In his cross examination, the PW denied that

criminal cases were pending against his daughter. He also

Crl. Rev. P. 76 of 2019

denied that his daughter was arrested in connection with one of

those cases.

[14] The husband on the other hand examined himself

as OPW-1. He repeated the averments made by him in his

written objection. He stated at the trial that his wife borrowed

huge amount of loan from her creditors for business. When she

could not repay their loan, she fled to Bishramganj. He has

further stated that his monthly income is less than Rs.6,000/-

(Rupees six thousand) out of which he pays monthly rent of

Rs.2,000/- (Rupees two thousand) for the rented house taken

by him at Agartala. The husband has further deposed that his

wife along with her father earns Rs.40,000/- (Rupees forty

thousand) from their business and she is quite able to maintain

herself.

In his cross examination, he admitted that he had

no document in his possession to prove the income of his wife.

He denied to have any extra marital relationship with his maid

servant. He also denied to have committed any kind of torture

on his wife.

[15] As discussed, on appreciation of evidence the

Family court has refused maintenance allowance to the wife on

the ground that she has income from her business and she is

thus able to maintain herself. While denying maintenance

allowance to the wife, the trial court has allowed maintenance

Crl. Rev. P. 76 of 2019

allowance at Rs.3,000/- (Rupees three thousand) per month for

each of their 2 (two) minor children. Extract of the findings of

the learned trail court is as under:

"8. Analyzing the evidence of the petitioner and the O.P side it is clear that the petitioner is the legally wedded wife of the O.P. It also reveals from the evidence of the petitioner side that the O.P treated the petitioner with cruelty and also assaulted her on demand of money. The O.P.

side failed to bring anything in the cross examination of the petitioner side so as to disbelieve them P.W-2 the witness of the petitioner side also supported the petitioner's case relating to assault committed upon the petitioner. The petitioner in her evidence stated that she has no income of her own and she is dependent upon her parents. But analyzing the evidence of P.W-2 who is the father of the petitioner stated that the petitioner is earning Rs.5,000/- to Rs.7,000/- per month by doing business. P.W-2 also admitted that the petitioner also helps him financially. Thus, the evidence of the petitioner is contradictory to evidence of P.W-2 relating to her income. Thus, as per the evidence adduced by the petitioner side, it is clear that the petitioner is doing business and she is earning Rs.5,000/- to Rs.7,000/- per month. So, she is capable of maintaining herself. Now coming to the income of the O.P side as the O.P is a private tutor at Agartala his monthly income from private tuition is considered as Rs.15,000/-. The O.P in his cross examination admitted that he is

Crl. Rev. P. 76 of 2019

having rubber garden hence, his income from business is assessed @ Rs.5,000/- per month. Thus the total income of the O.P is assessed as Rs.20,000/-. Thus, it is clear from the evidence of both the sides that the petitioner of this case is the legally wedded wife of the O.P and the petitioner No. 2 and 3 are not maintained by the O.P inspite of having sufficient means.

All the points are accordingly decided in favour of the petitioner side.

9. Now it is to be decided that what should be the quantum of maintenance the petitioner is entitled to get.

Accordingly, from above discussion made I am of the considered opinion that the petition filed by the petitioner U/S 125 Cr.P.C seeking maintenance from the O.P of this case has got merit and accordingly the same is hereby allowed.

10. In the result, the O.P is hereby directed to pay maintenance of Rs.3,000/- each per month to the petitioner No.2 and 3 i.e. total Rs.6,000/- per month from 01.07.2019 until further order.

The O.P. is also directed to pay such maintenance to the petitioner within 10th day of every English calendar month by money order after remitting the cost of money order therefrom until further order."

[16] While allowing maintenance allowance for each of

the 2 (two) children @ Rs.3,000/- (Rupees three thousand) per

month, the Family court has declined to grant any maintenance

allowance to the wife on the ground that she is capable of Crl. Rev. P. 76 of 2019

maintaining herself. Though the wife has denied to have any

income of her own, her father Nilo Debbarma [PW-2] in no

uncertain terms has stated at the trial that monthly income of

her daughter is Rs.7,000/- (Rupees seven thousand) from her

business.

[17] Admittedly, after leaving her husband she has been

living with her parents on the plot of land provided by her

husband at Bishramganj. It is not denied that after marriage,

her husband provided money and materials to her for setting

up her business at Bishramganj.

[18] Section 125 of the Code of Criminal Procedure,

1973 provides that the wife, who is unable to maintain herself,

is entitled to maintenance allowance from her husband who

inspite of having sufficient means neglects or refuses to

maintain his wife.

[19] In the given case, the wife has been living

separately from her husband over a long period of time. She

could not produce any plausible evidence to establish her claim

that her husband was responsible for termination of their

relationship. Rather the facts and circumstances of the case

demonstrates that after the wife left her husband he made

efforts to bring back his wife which did not work. It is evident

that while they lived together before their separation, the

Crl. Rev. P. 76 of 2019

husband and wife setup various businesses together. They

purchased a rubber garden together. Then they setup a poultry

farm and the wife also set up her business of selling garments

at her parental house at Bishramganj. It has surfaced on record

that the wife had a business from before their separation. Thus

the wife cannot derive any benefit from the decision of the Apex

Court in the case of Chaturbhuj (Supra) which has been relied

on by her. The husband on the other hand has stated that his

monthly income from private tuition is not more than

Rs.6,000/- (Rupees six thousand). It is also stated by him that

from this income he maintains himself and pays monthly rent of

Rs.2,000/- (Rupees two thousand) for the house where he is

residing at Agartala. However, he cannot shirk off his

responsibility of maintaining his minor children. The learned

Family court has rightly directed him to pay monthly

maintenance allowance of Rs.3,000/- (Rupees three thousand)

per month for each of his children.

[20] Since the evidence on record demontrates that the

wife has income and she is not unable to maintain herself,

there is no infirmity in the judgment of the Family court

whereby maintenance allowance has been denied to her.

Therefore, the impugned judgment of the learned Family court

does not call for any interference in revision.

Crl. Rev. P. 76 of 2019

[21] Resultantly, the petition stands dismissed and the

case is disposed of.

JUDGE

Rudradeep

Crl. Rev. P. 76 of 2019