Smti Sanjita Roy (Das) vs Sri Swapan Ch. Das
2022 Latest Caselaw 120 Tri

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                                 HIGH COURT OF TRIPURA
                                       AGARTALA

                                 Crl. Rev. P. No. 18 of 2020

1. Smti Sanjita Roy (Das)
   Wife of Sri Swapan Ch. Das,
   Daughter of Sri Sunil Ch. Roy.
2. Master Subham Das
   Son of Sri Swapan Ch. Das
   (Being minor, represented by his natural guardian Petitioner No.1, his
   mother)
   Both residents of Rabindra Nagar (Roy Para), P.O. Renters Colony, PS-
   East Agartala, Pin-799004.
                                                         -----Petitioner(s)
                                  Versus
1. Sri Swapan Ch. Das
   Son of Late Brajendra Kr. Das,
   Resident of Hrishyamukh Court Quarter complex, PS-Belonia, District-
   South Tripura, Pin-799155
2. The State of Tripura
   Represented by P.P.
                                                     ----- Respondent(s)

   For Petitioner(s)                      :    Mr. P.K. Ghosh, Adv.
   For Respondent(s)                      :    Mr. R.G. Chakraborty, Adv.
   Date of Hearing                        :    22nd December, 2021.
   Date of Pronouncement                  :    2nd February, 2022.
   Whether fit for reporting              :    NO


                                       B_E_F_O_R_E_
                HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                    JUDGMENT & ORDER

By means of filing this criminal revision petition, petitioner Smt.

Sanjita Roy (Das) has challenged the order dated 10.01.2020 passed by

the Additional Judge, Family Court, Agartala in case No. Crl. Misc. 316

of 2019 whereby the learned Additional Judge, Family Court held that

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the petitioner would not be entitled to any maintenance allowance

under section 125 Cr.P.C from her husband in view of her refusal to

restore conjugal relationship with her husband pursuant to the

judgment and decree dated 19.08.2017 passed by the District Judge,

South Tripura, Belonia in T.S.(R.C.R.) 8 of 2015 for restitution of

conjugal rights.

[2] Heard Mr. P.K. Ghosh, learned advocate representing the

petitioners. Also heard Mr. R.G. Chakraborty, learned counsel appearing

for the respondent husband.

[3] The background facts of the case are as under:

Petitioner Smt. Sanjita Roy (Das) filed a petition in the Family

Court, Agartala claiming maintenance allowance for herself and her

minor son from her husband. Petitioner made some allegations of

matrimonial cruelty against her husband. She alleged that after

solemnization of her marriage with the respondent on 06.05.2009 she

accompanied her husband to his place. Few months thereafter, her

respondent husband started committing torture on her for dowry. He

demanded a sum of Rs.1,00,000/- in cash. Petitioner having failed to

meet his demand, he committed physical assault on her on several

occasions. However, in the midst of matrimonial discord and

differences, she conceived and gave birth to a son. Even after the birth

of their child, her respondent husband did not change his attitude

towards her. Ultimately, she returned to her parents along with her son

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to get rid of torture of her husband. Having no means of earning, she

claimed maintenance allowance from her husband.

[4] Her respondent husband contested the case in the Family

Court. He denied all allegations of his wife. It was stated by him in his

written statement that apart from filing the petition under section 125

Cr.P.C, his wife also lodged complaint at the State Commission for

Women against him. Besides, he prosecuted him under section 498A

IPC for which he was arrested and detained in jail. For such detention,

he was placed under suspension by his employer. Respondent husband

of the petitioner claimed before the Family Court that he was living on

subsistence allowance and unable to provide any maintenance

allowance to his son and wife. The Family Court however, on

appreciation of pleadings and evidence granted a sum of Rs.2,000/- to

the petitioner for maintenance of herself and her son by judgment and

order dated 01.02.2014 passed in case No. Miscellaneous 140 of 2013.

[5] Thereafter, the petitioner filed a petition under section 127

Cr.P.C seeking enhancement of the maintenance allowance on various

grounds. She claimed that the circumstances were changed after the

maintenance order was passed on 01.02.2014 in Miscellaneous 140 of

2013. According to her, the income of her husband who was

government employee had gone up by that time. Moreover, due to price

escalation of essential commodities and the increase in living expenses

Rs.2,000/- was too inadequate to support herself and her son.

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[6] The respondent husband of the petitioner filed a written

objection against the claim of his wife contending that due to his

suspension from service he was living on subsistence allowance of

Rs.4,900/- per month. With this meager amount of money he was also

maintaining his physically disabled sister.

[7] The Family Court came to a finding that petitioner was a

Panchayet Secretary whose monthly gross salary was Rs.25,715/- and

after deductions he was drawing carry home salary of Rs.18,117/- per

month.

[8] Having considered the needs of the petitioner and the income

of her husband, the Family Court by order dated 08.01.2018 granted a

consolidated sum of Rs.7,000/- per month to the petitioner for

maintenance of herself and her son and directed her husband to deposit

the said amount in her savings bank account within the 10 th day of

every English calendar month.

[9] Husband of the petitioner namely, Swapan Das challenged the

said order by filing a criminal revision petition in this Court which was

admitted as Crl.Rev.P. 14 of 2018. The matter was decided by this

Court on 12.03.2019 viewing as under:

"Mr. R. G. Chakraborty, learned counsel appearing for the petitioner has submitted that a decree of restitution conjugal rights has been issued against the respondent-wife. Despite that she has not restituted the conjugal rights and she is not entitled to any maintenance allowance.

In view of the change in the circumstances, the petitioner-

husband has urged this court to interfere with the order dated

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08.01.2018 which has been passed in a proceeding under Section 127 of CrPC at the instance of the respondent-wife. Mr. Chakraborty, learned counsel has candidly submitted that the basic ground of objection taken in this petition is on the said decree of restitution conjugal rights. This ground in the considered opinion of this court, shall at the first instance be taken before the court who has passed the order of maintenance under Sections 125 and 127 of the CrPC as the petitioner has asserted a serious change in the circumstances. In terms of the above, Mr. Chakraborty, learned counsel further submits that the petitioner may be allowed to not press this petition with liberty reserved to approach the court which has passed the order of maintenance or its alteration. Prayer stands allowed.

This petition is dismissed as not pressed with liberty reserved to the petitioner to approach the Family Court, Agartala, West Tripura by filing the appropriate application for alteration of the maintenance order, if permissible, in view of the change in the circumstances, if any."

[10] Pursuant to the said order, husband of the petitioner filed a

petition in the Family Court at Agartala on 27.05.2019 seeking

cancellation of the maintenance order under section 127 Cr.P.C on the

ground that a decree for restitution of conjugal rights was passed in

favour of the husband of the petitioner by the District Judge, South

Tripura on 19.08.2017 in case No. T.S.(R.C.R.) 8 of 2015 and despite

such decree, the petitioner declined to restore conjugal relationship with

her husband. The Family Court by the impugned order dated

10.01.2020 passed in Crl. Misc.316 of 2019 cancelled the maintenance

allowance payable to her viewing that in view of the decree passed in

T.S.(R.C.R.) 8 of 2015 she was not entitled to any maintenance

allowance from her husband. Before the impugned order was passed

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cancelling her maintenance allowance, the Additional Judge, Family

Court by an order dated 16.08.2019 in Misc.294 of 2019 further

enhanced the maintenance allowance of the petitioner from Rs.7,000/-

to Rs.8,000/- w.e.f. 01.08.2019.

[11] Mr. P.K. Ghosh, learned counsel appearing for the petitioner

wife contends that the Family Court did not consider the fact that the

amount of maintenance allowance which was granted by the Family

Court also include the maintenance allowance payable to the son of the

petitioner which cannot be cancelled on the ground of failure of the

petitioner wife to restore conjugal relationship with her husband.

Counsel submits that petitioner has been living separately in fear of

torture of her husband. This apart matrimonial discord between herself

and her husband also affect her son psychologically and emotionally.

Since, she wants her son to grow up in healthy environment, she has

decided to live away from her quarrelling husband for which she needs

financial support of her husband. According to Mr. Ghosh, learned

counsel such claim of the petitioner cannot be defeated on the ground

that despite a decree for restitution of conjugal rights, petitioner did not

come to live with her husband. Counsel, therefore, urges the court to

set aside the impugned order and restore the maintenance allowance

payable to the petitioner and her son.

[12] Mr. R.G. Chakraborty, learned counsel appearing for the

respondent husband on the other hand submits that in terms of section

125(4) Cr.P.C, a wife who refuses to live with her husband without

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sufficient reason is not entitled to maintenance allowance under section

125 Cr.P.C. According to Mr. Chakraborty, learned counsel, despite the

decree for restitution of conjugal rights, petitioner declined to live with

her husband for which she is not entitled to maintenance allowance

from her husband. Counsel has argued that the Family Court had

recorded adequate reasons in the impugned order as to why the

maintenance allowance payable to the petitioner was cancelled and as

such the impugned order cannot be faulted with. Learned counsel,

therefore, urges the court to reject the petition.

[13] Situated thus, the question falling for consideration of this court

is whether maintenance granted to the wife under section 125 Cr.P.C

can be cancelled by the court in exercise of power under section 127

Cr.P.C in view of husband's obtaining a decree for restitution of conjugal

rights and wife's refusal to restore conjugal relationship pursuant to

such decree.

[14] It would appear from the judgment dated 19.08.2017 passed

by the District Judge, South Tripura in T.S.(R.C.R.) 8 of 2015 that the

husband (respondent herein) was granted an ex-parte decree for

restitution of conjugal rights on the basis of which Family Court passed

the impugned order cancelling the maintenance allowance granted to

the wife. Moreover, the husband (respondent herein) did not even call

upon his wife (petitioner) to resume conjugal life through the process of

executing the decree after he had obtained the decree for restitution of

conjugal rights.

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[15] The Punjab and Haryana High Court in the case for Sanjay

Chopra Vs. Shyama reported in 1999 SCC OnLine P&H 12 held that

in such facts and circumstances, obtaining the decree of restitution of

conjugal rights by the husband would have no effect on the wife's claim

to maintenance. Observation of the court was as under:

"10. Learned Counsel for the respondent, on the other hand, submitted that in case the husband has got an ex parte decree of restitution of conjugal rights, it shall not be binding on the Criminal Court in exercise of its jurisdiction under Section 125, Cr.P.C, unless in the proceedings of restitution of conjugal rights a specific issue had been framed on the point as to whether without any sufficient reason, wife refused to live with the husband and the parties had been given an opportunity to lead evidence and, thereafter, a specific finding is recorded by the Civil Court. He sought to draw support for this submission from a Division Bench judgment of this Court reported as Ravi Kumar v. Santosh Kumari, 1997 (3) RCR (Criminal) 4. It has been submitted by learned Counsel for the respondent that the husband filed petition for restitution of conjugal rights at Delhi on 12.7.1995, when proceedings under Section 125, Cr.P.C.

had been filed by the wife against him on 29.11.1994 and he had appeared before the Court on 16.1.1995. It has been submitted by him that proceedings for restitution of conjugal rights were filed by the husband mala fide with intent to defeat the wife's claim to maintenance. It was held in Jagdish Kumar v. Munish Kumari, 1986 (1) All India Hindu Law Reporter 410, that where husband filed petition for restitution of conjugal rights as counter- blast to the application filed against him under Section 125 of the Code of Criminal Procedure, husband's claim would be viewed as mala fide filed to avoid payment of maintenance to the wife. It has been further submitted that the mere obtaining of the decree for restitution of conjugal rights by the husband will not suggest that the wife has withdrawn from his society without reasonable cause or excuse. Husband is not shown to have called upon the wife through the process of executing the decree that she should be called upon to resume conjugal society. It has been submitted that if the husband had sought the execution of the decree and prayed that the wife be called upon to resume conjugal society with him and the wife had refused to resume conjugal society

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with him without any plausible cause, it could have been said that the withdrawal from the society of the husband on her part was unjustified and while husband was ready to take the wife to the matrimonial home. Husband, to my mind, has not called upon the wife to resume conjugal society with him after he had obtained the decree of restitution of conjugal rights and therefore, it cannot be said that the wife had withdrawn from his society without reasonable cause or excuse. In the execution proceedings also the wife could urge that her withdrawal from the society of the husband was for sufficient cause or excuse, more particularly when it was an ex parte decree.

11. In my opinion, in the facts and circumstances of the case, the obtaining of the decree for restitution of conjugal rights by the husband would have no effect on the wife's claim to maintenance."

[16] After the ex-parte decree for restitution of conjugal rights was

passed in favour of the husband, he did not call upon his wife to resume

conjugal life through the process of executing the decree. As a result, it

could not be ascertained as to whether the husband was genuinely

willing to take back his wife since the matter proceeded ex parte.

Moreover, the wife also did not have any opportunity to offer any

explanation as to why she refused to resume conjugal life. However,

after the husband applied to the court for cancellation of the

maintenance order payable to his wife in view of his having obtained a

decree for restitution of conjugal rights, the wife appeared and

contested the claim of her husband contending that after marriage she

was not happy even for a single day. She claimed that her husband

never supported her as a result of which she had to file case after case

to enforce her right to maintenance. The Family Court, however,

rejected her plea and allowed the petition of her husband by cancelling

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the maintenance order granted to her simply on the ground that she did

not challenge the decree of restitution of conjugal rights passed in T.S.

(R.C.R) 8 of 2015.

[17] The learned Family Court did not consider the fact that the

decree was passed ex-parte and her husband did not come out with an

offer to her to return to the conjugal life through the process of

execution of the decree. As a result, the wife could not come forward

with her explanation as to why she was declining to return to her

husband. Moreover, the Family Court did not also take into

consideration the explanation offered by the wife in the proceedings

under section 127 Cr.P.C for her refusal to return to her matrimonial

life. The learned Additional Judge, Family Court seems to have

mechanically rejected the maintenance allowance granted to her

pursuant to the decree for restitution of conjugal rights without

discussing the effect of such ex-parte decree on the wife's claim to

maintenance. Moreover, the Family Court did not also take into

consideration the fact that the maintenance allowance granted in favour

of the wife (petitioner herein) also included the allowance of her son

because she was representing her minor son in the proceeding under

section 125 Cr.P.C. But, while denying maintenance allowance to the

wife by the impugned order pursuant to the decree for restitution of

conjugal rights, the Additional Judge, Family Court also denied

maintenance allowance to her son which was incorrect.

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[18] In these facts and circumstances of the case, impugned order

cannot be sustained. Resultantly, the impugned order passed by the

Additional Judge, Family Court, Agartala in Crl. Misc. 316 of 2019

arising out of Misc. 140 of 2013 is set aside. Consequently, the order

with regard to payment of maintenance allowance to the wife and son

of the petitioner is restored. It appears from record that by an order

dated 16.08.2019 passed in Misc.294 of 2019, petitioner was directed

to pay maintenance allowance of Rs.8,000/- at the enhanced rate to his

wife and son. The Family Court, Agartala shall enforce payment of such

maintenance allowance to the wife and son of the petitioner in

accordance with law.

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

disposed of. Send back the LC record along with a copy of the order to

the Additional Judge, Family Court, Agartala for compliance. Copy of the

order may also be supplied to the parties through their counsel.

Pending application(s), if any, shall also stand disposed of.

JUDGE

Rudradeep

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