Tripura High Court
Smt. Sonali Bhowmik vs Sri Sanjoy Ghosh on 26 November, 2021
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HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No. 42 of 2021
1. Smt. Sonali Bhowmik,
Daughter of Bishu Kr. Bhowmik, Wife of Sri Sanjoy Ghosh
2. Miss Gloria Ghosh (Minor),
Daughter of Sri Sanjoy Ghosh
Both are residents of Joynagar, Piyari Babur Bagan, Agartala
----- Petitioner(s)
Versus
Sri Sanjoy Ghosh,
Son of Lt. Surash Ghosh, resident of Madhya Prataphgarh, P.S. East
Agartala, Agartala, Tripura
-----Respondent(s)
For Petitioner(s) : Ms. A. Debbarma, Adv.
For Respondent(s) : Mr. S. Bhattacharjee, Adv.
Mr. T. Chakraborty, Adv.
Date of Hearing : 24th September, 2021.
Date of Pronouncement : 26th November, 2021.
Whether fit for reporting : NO
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
This criminal revision petition is directed against the
judgment and order dated 28.07.2021 passed by the Family Court,
Agartala in Misc. 607 of 2019 in a proceeding under section 125 Cr.P.C
whereby the Family Court granted monthly maintenance allowance of a
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sum of Rs.3,000/- to the daughter of the petitioner and declined to
grant any maintenance allowance to the petitioner on the ground that
she refused to live with her husband without any sufficient reason.
[2] Aggrieved petitioner has therefore approached this court
seeking a direction to her respondent husband for paying monthly
maintenance allowance of Rs.30,000/- to the petitioner and her said
daughter.
[3] The factual background of the case is as under:
A petition under section 125 Cr.P.C was filed by the
petitioner in the Family Court at Agartala on 21.09.2019 alleging, inter
alia, that after her marriage with the respondent a marriage certificate
dated 18.09.2017 was also issued by the ADM & Collector, West
Tripura. Daughter namely, Gloria Ghosh (petitioner No.2) was born
within their wedlock. Before their marriage, her respondent husband
had a shop in Maharajganj bazaar at Agartala where he used to sell
fruits to the customers. His business generated a monthly income of
about one lakh. When she was married to the respondent, petitioner
was a college student. Her mother in law created obstructions in various
ways to prevent her from continuing her education. Her in laws
demanded cash and gold and asked her to bring the same from her
parents. She was told that in case of her failure to appease their
demand, she would be divorced by her husband. On 14.03.2018,
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petitioner suffered from serious abdominal pain. She informed her
father. When her father came to meet her in her matrimonial home, he
was not allowed to meet the petitioner. As a result, the petitioner left
her matrimonial home for treatment on the following day. During the
following four months, her respondent husband did not keep any
contact with her. On 12.06.2018, her husband met her at her parental
home and continued to visit her there for the next three months. On
20.08.2018, he visited her at her parental home and started quarrelling
with her. In the course of quarrel, he tried to kill her by strangulation.
Somehow the petitioner saved herself from the attack of her husband.
The enraged husband then gave a blow on her face as a result of which
she lost one of her teeth. She had to undergo treatment at I.G.M.
hospital at Agartala for recovery. Thereafter, she lodged a complaint at
the police station against her torturous husband. After the case was
lodged by her, the respondent husband brought her back to his place
with an assurance that he would not repeat any king of atrocious
conduct. During her stay at her matrimonial home, she conceived and
gave birth to their daughter in due course. After the birth of their
daughter she came back to her parental home. During her stay with her
parents, her husband never met her or their daughter. He did not
provide any maintenance allowance to them despite knowing that
petitioner had no ability to maintain herself and her daughter. She,
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therefore, claimed maintenance allowance of a sum of Rs.30,000/- for
herself and Rs.15,000/- for her daughter.
[4] Her respondent husband submitted a written statement in
the Family Court denying the allegations raised by his petitioner wife
against him. He asserted that his wife voluntarily left her matrimonial
home without sufficient reason. She did not even allow him to meet his
daughter after she was born. The respondent claimed that he was
always willing to live a conjugal life with his wife. Every time he
approached her to come back to his place, she refused. The respondent
also claimed that his petitioner wife implicated him in a false criminal
case. In spite of such hostile conduct of his wife, he wanted to live with
his petitioner wife and daughter. The respondent claimed that his
monthly income from his business would not exceed Rs.10,000/- per
month and therefore he was quite unable to pay the sum of money
claimed by his wife. The husband further stated that since his wife was
living separately without sufficient reason, she was not entitled to any
maintenance allowance from him. The respondent, therefore, claimed
for dismissal of the petition.
[5] In the course of trial, petitioner wife examined herself as
PW-1 and her father as PW-2. Her husband on the other hand examined
himself as OPW-1 and his neighbour Tanoy Majumder as OPW-2.
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[6] On the basis of the pleadings of the parties, the Family
Court framed the following issues for determination:
"(i) Whether the petitioner was the wife of the respondent.
(ii) Whether the petitioner was living separately without
reasonable cause.
(iii) Whether the respondent husband of the petitioner
neglected her maintenance despite having sufficient
means.
(iv) Whether the petitioner was entitled to the maintenance
allowance as claimed by her."
[7] On appreciation of evidence, the Family Court held that
petitioner and respondent were legally married. With regard to her
entitlement to maintenance allowance, the Court held that the
petitioner was not entitled to maintenance allowance because she was
not living with her husband without any sufficient cause. The Family
Court, however, held that their daughter who was arrayed as petitioner
No.2 was entitled to maintenance allowance from her respondent
father. The Family Court assessed the monthly income of the
respondent at Rs.15,000/- and granted a monthly sum of Rs.3,000/- to
their petitioner daughter namely, Gloria Ghosh as maintenance
allowance and her respondent father was directed to pay such
maintenance allowance to her within the 10th day of every English
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calendar month. The relevant extract of the judgment of the Family
Court is as under:
"10. Point No.4:- Whether the petitioners are
entitled to get maintenance allowance as claimed?
From the discussion of Point No.2 I am of the opinion that
where the petitioner No.1 is not entitled to maintenance
as she does not have any reasonable ground to leave her
matrimonial home or refuse to reside with the O.P., the
petitioner No.2 being the minor child of the parties and
the O.P. being the father of the petitioner No.2 is entitled
to get maintenance from her father.
Now the question arises as to the quantum of
maintenance. It is admitted that the O.P. is a fruit vendor
at Golbazar and it is claimed by the petitioner No.1 that
the monthly income of the O.P. is Rs.1,00,000/- as the
O.P. has a shop at Golbazar but in her examination-in-
chief the petitioner stated that the O.P. does fruit
business out of which he earns Rs.50,000/- to
Rs.60,000/- per months and claims Rs.30,000/- as
maintenance per month. P.W.-2 in his deposition stated
that the O.P. does fruit business and earns Rs.1,00,000/-
per month but no document relating to the income of the
O.P. has been submitted before the Court.
The O.P. in his examination-in-chief expressed his desire
to live with his wife and also stated that his monthly
income is Rs.10,000/- and O.P.W.-2 also said that the
monthly income of the O.P. is Rs.8,000/- to Rs.10,000/-
per month. From the deposition of aforesaid witnesses it
is clear that the O.P. has source of income and he has a
business at Golbazar. In absence of any documentary
evidence, basing on the oral evidence adduced by the
parties in this case and background of parties, the
monthly income of the O.P. is assessed @ Rs.15,000/-
per month and he is directed to pay Rs.3,000/- per month
to the petitioner No.2.
Accordingly, this point is decided against the petitioner
No.1 and in favour of the petitioner No.2.
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ORDER
In the result the O.P. is hereby directed to pay
maintenance of Rs.3,000/- per month to the petitioner
No.2 from 01.07.2021 until further order. The O.P. is also
directed to pay such maintenance to the petitioner within
the 10th day of every English calendar month by money
order after remitting the cost of money order therefrom
until further order.
The case stands disposed of on contest."
[8] Heard Ms. A. Debbarma, counsel appearing for the
petitioner. Also heard Mr. S. Bhattacharjee, learned advocate appearing
along with Mr. T. Chakraborty, advocate for the respondent husband.
[9] Ms. Debbarma, counsel of the petitioner contends that
petitioner is a hapless woman. She would not have left the company of
her husband along with her minor child had she not been compelled to
do so. Counsel submits that few months after marriage, petitioner
realized that she had a torturous husband. Her in laws also meted out
various kinds of mental and physical torture to her which compelled her
to leave her matrimonial home. Even thereafter, she returned to her
matrimonial home when her husband assured her that she would be
treated fairly by her in laws. Again she was subjected to harassment as
a result of which she left her matrimonial home and claimed
maintenance allowance. Counsel submits that Family Court declined to
grant maintenance allowance to her without appreciating these facts.
Crl. Rev. P. No. 42 of 2021
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[10] Counsel appearing for the respondent husband on the
other hand submits that the respondent is still willing to bring back his
wife to him for which he filed a suit for restitution of conjugal rights but
his efforts did not work since there was no response from the side of
the petitioner wife. Counsel submits that the monthly income of the
respondent husband from his business does not exceed Rs.10,000/-
from which he is paying Rs.3,000/- to his daughter in terms of the order
of the Family Court. He is unable to pay any amount to his petitioner
wife as maintenance allowance.
[11] Perused the evidence on record and considered the
submissions made at the Bar. The petitioner has brought various
allegations of matrimonial cruelty against her husband. She testified as
PW-1 in support of her allegations. She was subjected to cross
examination by her respondent husband but her evidence could not be
impeached to any length. Her witness has also supported her
allegations.
[12] Her husband on the other hand testified as OPW-1 to
embellish her case. He brought forward his own case but he could not
damage the evidence of his wife by adducing oral evidence before the
court.
[13] Counsel of the petitioner has rightly submitted that
husband is duty bound to provide food, clothing and shelter to the
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deserted wife who is unable to maintain herself. He cannot escape by
merely saying that his wife has been living separately without any
sufficient reason particularly when the wife has adduced sufficient
evidence to show that she was treated with cruelty at her matrimonial
home.
[14] With regard to the purpose of section 125, Cr.P.C, the
Apex Court in Vimala (K.) Vs. Veeraswamy (K.) reported in (1991)
2 SCC 375 held as under:
"3. Section 125 of the Code of Criminal Procedure 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............."
[15] Similar observation was made by the Apex Court in
Chaturbhuj Vs. Sita Bai reported in (2008) 2 SCC 316 which is as
under:
"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
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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]
[16] Looking to the purpose of provision of section 125 Cr.P.C
and the evidence available on record, this court is of the view that the
Family Court had committed error by refusing to grant maintenance
allowance to the petitioner wife. Even though no documentary evidence
has been adduced by the petitioner with regard to the income of her
husband, it can be presumed that a person having a business at
Maharajganj bazar would obviously earn a handsome amount. The age
of the respondent and his ability to earn is also considered by this court.
Thus, having regard to all the relevant aspects, the respondent husband
is directed to pay monthly sum of Rs.12,000/- for the maintenance of
his wife and daughter w.e.f. 01.07.2021. He will pay the said amount by
depositing the same in the individual saving bank account of his wife
within the 7th day of every English calendar month. The amount due for
the month of November, 2021 shall be deposited within the 7 th day of
December, 2021. Arrear from 01.07.2021 to 30.11.2021 shall be paid
by the respondent in 8(eight) instalments by depositing the money in
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the bank account of the petitioner in the same manner. Amount already
paid, if any, in terms of the impugned order of the Family Court shall be
adjusted. Family Court, Agartala shall ensure compliance of the order in
accordance with law.
[17] In terms of the above, the petition is disposed of. Send
down the LC record. Pending application(s), if any, shall also stand
disposed of.
JUDGE
Rudradeep
Crl. Rev. P. No. 42 of 2021
