Rakesh Miah vs Smt. Babita Begam
2021 Latest Caselaw 228 Tri

                              HIGH COURT OF TRIPURA
                                    AGARTALA
                                  Crl.Rev.P.No.15 of 2020

              Rakesh Miah
              Son of late Sangsar Ali
              Village:Gakulpur (Khilpara Tilla)
              P.S.:R.K.Pur, Udaipur
              District: Gomati, Tripura.
                                                  .....................Applicant(s)

                                            Versus
              Smt. Babita Begam
              W/o Sri Rakesh Miah of
              Village :Rajdhar Nagar
              P.S.: Kakraban, Udaipur
              District : Gomati, Tripura

              2.The State of Tripura Represented by the Ld. PP, High Court of
              Tripura, Agartala
                                                  ..................Respondent(s)

For the Petitioner(s) : Mr. D.C.Roy, Adv.

For the Respondent(s) : Mr. S.Ghosh,Addl. PP Mr. A.Acharjee, Adv.

Whether fit for reporting: No.

BEFORE

HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

Judgment and order(Oral)

24.02.2021

[1] This Criminal Revision Petition has been filed by the

husband petitioner challenging the order dated 03.07.2018

passed by the Family Judge, Udaipur in Gomati Judicial District in

Criminal Misc. No.106 of 2017 granting monthly maintenance

allowance @Rs.3,000/- to the wife respondent.

[2] Heard Mr. D.C.Roy, leaned counsel on legal aid for the petitioner as well Mr. A.Acharjee, learned Advocate appearing for the wife respondent. Also heard Mr. S.Ghosh, learned Addl. PP for State respondent.

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

Smt. Babita Begam being the wife of Sri Rakesh Miah

of Rajdhar Nagar, Kakraban of Gomati District, Tripura filed an

application under Section 125 Cr.P.C in the Family Court at

Udaipur on 15.11.2017 claiming maintenance allowance

@Rs.7000/- per month to support herself alleging, inter alia, that

after her marriage she accompanied her husband to his place

and started discharging her matrimonial obligations. It was

alleged by her that during their marriage, her parents gave

valuables including jewelry, furniture, color TV and cash of a sum

of Rs. 20,000/-. In spite of that, only few years after the

marriage, her in laws started subjecting her to torture for

bringing more money from her parents and ultimately on

12.06.2017 she was driven out of her matrimonial home. The

hapless petitioner took shelter with her parents. Even after she

was hospitalized for treatment, none came from her matrimonial

home to see her. After she was driven out from her matrimonial

home, her husband remarried one Smt. Golapi Begam and

started living with her. In these circumstances, the petitioner

instituted the case under Section 125 Cr.P.C. claiming

maintenance allowance. It has been alleged by the petitioner

that her husband is a mason who earns not less than

Rs.20,000/- per month and thus he is quite able to maintain his

wife. The wife on the other hand does not have income of her

own to support herself.

[4] The husband contested the case and submitted his

written objection in the Family Court denying all allegations

brought against him by his wife. He, however, admitted his

marriage and also admitted that after marriage they lived

together and led a conjugal life. It was alleged by the husband

that after marriage he discovered that his wife had been

suffering from gynecological disorder and she was unable to

conceive. The husband consulted several gynecologists who

opined that the wife would not be able to conceive. It was

further alleged by the husband that his wife was very arrogant

and she always used to misbehave with him. But the husband

condoned her conduct and continued living with her. On

12.06.2017 the wife voluntarily left his home and started living

with her parents. He denied that he had a monthly income of

Rs.20,000/- and he declined to pay any maintenance allowance

to his wife.

[5] In the course of trial the Family Court framed 02

issues which are as under:

i) Whether the husband neglected to maintain his wife despite having sufficient means

ii)Whether the wife was entitled to maintenance allowance as sought for.

[6] In order to establish her case before the Family

Court, the petitioner adduced 03 witnesses including herself and

her husband also adduced the evidenced of 03 witnesses

including himself who were examined as OPW-1 OPW-2 and

OPW-3.

[7] In her evidence the wife as PW-1 repeated the same

story which was projected by her in her petition. She supported

her claim by saying that despite having sufficient means her

husband neglected her maintenance without sufficient reason.

She also reaffirmed that her husband remarried after driving her

out of his home.

[8] PW-2, a neighbor of the petitioner also stated at the

trial that he came to know from the mother of the wife that the

wife was brutally tortured by her husband after marriage. The

PW further stated that the husband and wife led a conjugal life

for about 9 years before their separation.

[9] PW-3, Rajjak Miah also supported the case of the petitioner.

[10] The husband who was examined as OPW-1 admitted

his remarriage in his cross examination. He also stated that he

did not adduce any medical evidence to prove that his wife was

unable to conceive. His own witness Smt. Subhadra Sharma

OPW-2, stated that they led a conjugal life for about 10 years.

OPW-3 the mother of the husband also supported the fact that

after the marriage, her son led a conjugal life for about 9 years

with his wife.

[11] In this factual back drop, the family court came to

the conclusion that since the husband remarried, the wife had

sufficient reason to live away from him. It was also concluded

by the family court that the husband was a mason and as such

he had sufficient means to support his wife. Despite having

sufficient means he neglected the maintenance of his wife. As

such, the family court after considering the income of the

husband and the needs of the wife, allowed monthly allowance of

a sum of Rs.3,000/-. Relevant extract of the impugned order is

as under:

"From the evidence discussed above, it is obvious that all the aforementioned points are not applicable in the instant case. Over and above, admittedly the O.P. re- married so, the Petitioner has sufficient cause for not living with the O.P. Hence the petitioner is entitled to get maintenance allowance from the O.P.

Though the Petitioner claimed that the O.P earns Rs.20,000/- per month yet in support of the claim she did not produce any convincing evidence but it is

established that O.P is a mason by profession. So, it can safely be presumed that the O.P earns sufficiently to maintain his wife.

Any way, considering the minimum needs of petitioner nd source of income of the O.P. I think it would meet the ends of justice if the O.P pays Rs. 3000/- (rupees three thousand) per month to the petitioner w.e.f 01.07.2018 within the first week of every English calendar month through money order and the money order commission will be borne by the O.P.

The amount of maintenance can be remitted to the bank account of Petitioner if her bank account details is furnished lateron."

[12] Appearing for the husband Mr. D.C.Roy, learned

counsel on legal aid submits that the family court allowed a

monthly maintenance of a sum of RS.3,000/- to the wife without

taking into consideration the income of her husband.

[13] It is further argued by Mr.Roy, learned counsel that

the family court did not also consider his dependency while

determining the quantum of monthly maintenance allowance.

According to Mr.Roy, the husband lives in a remote area where a

mason hardly earns more than Rs.5,000/- per month. With this

meager income of him, he also maintains his old and ailing

parents and his second wife. It is further argued by Mr.Roy,

learned counsel that the wife was subjected to medical

examination several times during her stay with him and the

doctors opined that she was unable to live a conjugal life and

conceive. Learned counsel, therefore, urges this court to

consider all these facts and circumstances and reduce the sum of

the maintenance allowance granted by the Family Court.

[14] Mr. A.Acharjee, learned counsel of the wife

respondent contends that admittedly the spouses led a conjugal

life for a considerable period of about 9 years which falsifies the

contention of her husband that she was physically incapable of

living a conjugal life. It is contended by Mr.Acharjee, learned

counsel that he evidence recorded at the trial demonstrates that

the wife became unable to bear the torture and harassment of

her husband and ultimately she was driven out of his home. It is

further submitted by Mr.Acharjee, learned counsel that only few

months after she was ousted from her matrimonial home, her

husband remarried and started living with his second wife.

According to Mr.Acharjee, the wife has been able to prove that

there are sufficient reasons for her separate living and she has

also been able to prove that she does not have any income to

maintain herself. The husband on the other hand is a mason by

occupation earns a handsome amount every month and thus

capable of providing maintenance allowance to his wife.

[15] Having taken into consideration the submissions of

the parties and the facts and circumstances of the case I find no

fault with the findings of the Family Court in granting

maintenance allowance to the wife. Section 125 provides that if a

person having sufficient means neglects or refuses to maintain

his wife who is unable to maintain herself is legally bound to

provide maintenance allowance to his wife. Sub-section(4) of

Section 125 provides that only when it is proved that the wife is

living in adultery or she refuses to live with her husband without

sufficient reason or they are living separately by mutual consent,

the wife shall not be entitled to maintenance allowance. In this

case none of these grounds exists. Rather, it is admitted by the

husband that he has remarried and therefore, the wife has

sufficient reason to live away from her husband. Moreover, it is

not denied by the husband that he is not a mason by

occupation and he does not have any income.

[16] However, considering all these facts and

circumstances, particularly the income of the husband, his

dependency and other relevant factors, this court is of the view

that monthly allowance of Rs.3,000/- granted by the Family

Court should be reduced to Rs.2500/- per month.

[17] Therefore, it is directed that the husband petitioner

will pay monthly maintenance allowance @Rs.2500/-(two

thousand and five hundred) per month to his wife respondent

namely Smt. Babita Begam w.e.f. 01.07.2018.

In the result, the husband will pay Rs.2500/- per

month to his wife w.e.f. 01.07.2018 by depositing the same in

the bank account of the wife respondent. The arrear with effect

from 01.07.2018 till 31.01.2021 shall be paid in 12(twelve)

monthly installments by the same mode of payment. The

petitioner husband may, however, approach the family court

Udaipur to raise the number of installments to pay the arrear.

Monthly maintenance allowance at the rate of Rs.2500/-(two

thousand and five hundred) per month from February, 2021

onwards shall be paid within the first week of every succeeding

month.

[18] The revision petition is thus partly allowed and the

case is disposed of.

Copy of the order shall be supplied to the husband

petitioner as well as the wife respondent free of cost.

JUDGE

Saikat Sarma, P.A