Sri Pravas Barman vs Sri Arpit Barman
2022 Latest Caselaw 456 Tri

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                                    HIGH COURT OF TRIPURA
                                          AGARTALA

                                    Crl. Rev. P. No. 59 of 2021

Sri Pravas Barman,
Son of Sri Ranjit Barman, Vill Mahesh Khala, P.S. Amtali, District West Tripura
                                                                    ----- Petitioner(s)
                                             Versus
1. Sri Arpit Barman,
Son of Sri Prabhas Barman
2. Smt. Helan Sarkar,
Wife of Sri Prabhas Barman, Daughter of Sri Pishan Sarkar,
Both are resident of Vill & P.O. Sarbadharma Mission, P.S. A.D. Nagar, District West
Tripura.
(The respondent No.1 being minor, he is represented by his mother natural

guardian i.e. respondent No.2)

-----Respondent(s)

For Petitioner(s) : Mr. A.K. Pal, Advocate.

For Respondent(s) : Mr. Diptanu Debnath, Advocate.

Date of Hearing                              :        19th January, 2022.
Date of Pronouncement                        :        19th April, 2022.
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 order dated

27.07.2021 passed by the Family Court, Agartala in Crl. Misc.603 of 2019 whereby

the Family Court has directed the petitioner to pay monthly maintenance allowance

of a sum of Rs.10,000/- to his son Arpit Barman w.e.f. 01.10.2019 by depositing the

same in the bank account of his mother who is the divorced wife of the petitioner.

[2] The fact of the case in brief is that marriage between the petitioner

and Smt. Helan Sarkar was dissolved on mutual consent by a judgment dated

28.09.2016 passed by the Family Court, Agartala in Title Suit (Divorce) 351 of 2015

and at the time of granting divorce, permanent alimony payable to the wife of the

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petitioner was settled at Rs.3,50,000/- which has already been paid by the

petitioner to his divorced wife Smt. Helan Sarkar. It was also settled between the

parties that their son would live with his mother. Pursuant to the decree of divorce,

the spouses were separated from each other and they started living separately. The

petitioner husband has, by this time, remarried. On 01.10.2019, divorced wife of

the petitioner filed a petition in the Family Court, Agartala alleging that the

petitioner (her former husband) was not providing any support for maintenance of

their son Arpit Barman. She claimed a monthly sum of Rs.10,000/- for maintenance

of their son who was living with his mother in terms of the settlement arrived at the

Family Court at the time of granting decree of divorce on mutual consent.

[3] In support of her claim, wife (respondent) examined herself as PW-

1 and she submitted various documents including the medical prescriptions and

cash memos of medicines to show that regular expenditure is being incurred by her

for treatment of her son Arpit. She also claimed that her former husband was a

constable in Tripura State Rifles and his gross monthly salary was Rs.35,000/-.

[4] Having received notice, the present petitioner appeared before the

Family Court and took time for filing his written objection. But, on no other

subsequent date he appeared before the Family Court. Therefore, the court heard

the case ex-parte against him and on appreciation of evidence, granted monthly

maintenance of a sum of Rs.10,000/- to his son Arpit Barman and asked the

petitioner to pay the maintenance allowance w.e.f. 01.10.2019 i.e. from the date of

filing of the petition for maintenance allowance. The impugned order reads as

under:

"7. POINT NO.II & III:- For convenience, both the points are taken up together for decision.

Crl. Rev. P. No.59 of 2021 Page - 3 of 7

During examination, the petitioner as PW-1 specifically deposed that her marriage was solemnized with the OP on 25-10-2005 Hindu rites and customs and out of their wedlock a son named Master Arpit Barman was born. He is a student of Class-VIII. But due to torture of the OP she had to leave her matrimonial home along with her son. Subsequently, on mutual consent this court granted divorce in the year 2016. She further deposed that the OP is a constable serving in TSR and earning around Rs.35,000/- per month. After filing of this case the OP sometimes paid Rs.1500/- for the tuition of Master Arpit Barman but that was not regular. She further deposed that her son will be enrolled in Class-IX very soon and also considering his tuition and other expenditure, she seeks Rs.10000/- as maintenance for him from the OP. She further deposed that her son has also problem of oozing blood from his nose after ¾ moths regularly. She also consulted various doctors and his treatment is going on.

The OP did not cross-examine PW-1.

8. In appreciation of the evidence on record I find that the marriage of the petitioner and the OP was dissolved on mutual consent vide judgment Dt. 28-09-2016 passed in TS (Div) 351 of 2015 by this court. During passing of that judgment, the OP herein paid Rs.3,50,000/- as permanent alimony to the petitioner and it was further decided that the son would reside under the care and custody of the petitioner, but nothing was decided in favour of the minor son. Presently, the child has grown up and he has been prosecuting his studies in Class-VIII and soon will be enrolled for Class-IX. I have also perused the documents marked as Exbt.1 to 23 which are the medical prescriptions and some other documents relating to school fees etc., from where it appears that the petitioner has to incur a considerable amount for the educational expenditure of the child. Moreso, the child is having some sort of medical problems as ooze blood from his nose after ¾ months regularly as stated by the petitioner and the petitioner has to incur some expenditure for his treatment by various doctors though she has no income of her own and during argument it is also stated by the petitioner that she has to remain dependent on her parents for the purpose as stated above. On the other hand, the OP is a constable serving in TSR has been getting Rs.35,000/- per month, but he has not been providing any financial help either for the treatment or for his education and maintenance, though the petitioner as PW-2 stated that during the pendency of this case he has sometimes paid Rs.1500/- which I find very inadequate for maintenance of the minor son now a days.

Therefore, considering all aspects, the OP is under obligation to pay maintenance to his son Master Arpit Barman.

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Accordingly, the points are decided in the affirmative, in favour of the petitioner, but against the OP.

9. Situated thus, the OP is hereby directed to pay maintenance of Rs.10,000/- per month to the minor son Master Arpit Barman w.e.f, 01-10-2019 and send the same to the Savings Bank Account vide SB A/C. No.2156010038483, lying in United Bank of India, Camper Bazar 92156) Branch, IFSC No.UTBI0CMRY27, payable within the 10th day of every English Calendar month until further order."

[5] By means of filing this criminal revision, the petitioner has assailed

the said order passed by the Family Court mainly on the following grounds:

(i) The Family Court did not consider the fact that the petitioner paid

an alimony of Rs.3,50,000/- to his divorced wife in terms of settlement arrived at

between the spouses at the time of granting decree of divorce on mutual consent.

(ii) The Family Court did not appreciate the fact that petitioner is a

poor paid employee and after divorce he remarried and other than the petitioner,

his second wife and parents were also his dependents.

(iii) The Family Court did not consider the fact that the petitioner was

already paying around Rs.3,000/- per month towards the educational expenses of

his son.

[6] Mr. A.K. Pal, counsel appearing for the petitioner urges the Court to

reduce the amount to a reasonable extent in view of the income and the existing

liabilities of the petitioner.

[7] Mr. Diptanu Debnath, learned counsel appearing for the respondent

on the other hand contended that the respondent son of the petitioner wholly

depends on his father for his education and survival. Counsel contended that

mother of the respondent has no income at all. Therefore, without the support of

her father it would not be possible for him to continue his education. Counsel has

also contended that the respondent son of the petitioner has been suffering from

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various ailments and the medical documents submitted by the respondent would

show that a huge monthly expenditure is being incurred for his treatment. In such

circumstances, Rs.10,000/- which has been granted by the Family Court is not even

enough for his education, treatment and other expenses. Counsel, therefore, urged

for dismissal of the petition.

[8] Perused the record and considered the submissions made at the

Bar.

[9] While granting decree of divorce by the judgment dated

28.09.2016 in Title Suit (Divorce) 351 of 2015, the Family Court directed that the

son (respondent) would be living with his mother in her custody as per settlement

between the parties. The relevant extract of the judgment dated 28.09.2016 is as

under:

"3. On earlier occasion, both the petitioners appeared before the court and during reconciliation both of them expressed their strong desire for divorce. Both the petitioners also stated before the court on oath today that they have been living separately for about 4 ½ years. They do not want to lead conjugal life as there is mal-adjustment between them. During deposition the wife- petitioner deposed that she has received Rs.3,50,000/- (Rupees three lac fifty thousand) only from the husband-petitioner as alimony. The wife-petitioner further submitted that she does not have any further claim from the husband-petitioner. It is also deposed by the petitioners that their son shall remain under the care and custody of the wife-petitioner.

4. Having regard to the submission made by the petitioners and also after perusing the joint petition filed by the parties, I am of the view that it will be better to allow the prayer made by the parties for a decree of divorce on mutual consent without dragging the case unnecessarily for the welfare of both the petitioners since they are no longer interested to stay together as husband and wife and accordingly, it is ordered that the marriage between the husband-petitioner Sri Pravas Barman and the wife-petitioner Smt. Helan Sarkar is hereby declared dissolved with immediate effect u/s.13B of the Hindu Marriage Act, 1955. It is made clear that from today there will be no marital bondage between the petitioners."

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[10] It is not in dispute that the mother of the respondent has no source

of income. It is not also in dispute that the respondent is a student of Class-X in

Swami Dhananjoy Das Kathia Baba Mission School and he has been suffering from

various ailments for which he requires regular treatment and medicine. The salary

certificate dated 20.01.2022 of the petitioner available on record indicates that the

monthly gross salary of the petitioner is Rs.34,320/- and after various deductions

he draws a sum of Rs.14,812/- as carry home pay in every month. The deductions

include a sum of Rs.3,000/- towards GPF subscription, Rs.300/- towards group

insurance, Rs.2,000/- towards festival advance, Rs.208/- towards professional tax

and Rs.14,000/- towards payment of instalments for bank loan. Among these

deductions, other than the deduction towards GPF, group insurance and

professional tax, no other deduction can be said to be a compulsory deduction.

Even the amount of GPF subscription may also be reduced in case of need. To pay

reasonable sum of maintenance allowance to his son, the petitioner may also apply

to the bank for reducing the amount of monthly instalments towards repayment of

the bank loan by raising the number of instalments. Therefore, the petitioner

cannot defeat the claim of his son by showing that he draws a carry home pay of

Rs.14,812/-.

[11] Undisputedly, the second wife and the parents of the petitioner are

also depended on him for their survival. Moreover, it is stated by the petitioner that

he had taken the bank loan for paying the alimony to his wife as per order of the

Family Court. The loan is still outstanding.

[12] Considering all those aspects including the income of the petitioner

and his existing liabilities and considering the need of his son, this Court is of the

view that the amount of maintenance allowance granted by the Family Court should

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be reduced to a monthly sum of Rs.9,000/- for ends of justice. Therefore, the

petitioner is directed to pay a monthly sum of Rs.9,000/- towards maintenance of

his son Arpit Barman w.e.f. 01.10.2019 i.e. the date of filing of the petition under

section 125 Cr.P.C in the Family Court.

[13] The arrears from 01.10.2019 till 31.03.2022 comes to Rs.1,80,000/-

. Amount already paid by the petitioner, if any, shall be deducted from the arrear

for which the petitioner may file a petition giving particulars of such payment before

the Family Court. The Family Court, Agartala will then decide the matter with regard

to the arrear after giving opportunity of hearing to the other side and may allow

monthly instalments to the petitioner for paying such arrear.

[14] Regular monthly maintenance at Rs.9,000/- (Rupees six thousand)

per month shall be paid by the petitioner for maintenance of his son by transferring

the amount to the bank account of his former wife Smt. Helan Sarkar within the

first week of every succeeding month. Maintenance allowance due for April, 2022

shall likewise be paid within 7th May, 2022 failing which the Family Court, Agartala

on application made to it shall enforce such payment.

[15] In terms of the above, the criminal revision petition stands

disposed of. Send down the LCR. Pending application(s), if any, also stand disposed

of.

JUDGE

Rudradeep

Crl. Rev. P. No.59 of 2021