Sri Nabab Ali Choudhury vs Smti. Monoara Begam Choudhury
2022 Latest Caselaw 310 Tri

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                     HIGH COURT OF TRIPURA
                        A_G_A_R_T_A_L_A

                       Crl. Rev. P. No. 15 of 2021

1.    Sri Nabab Ali Choudhury, son of late Khalil Ullah Choudhury of
      village Rajbari (Durgapur), P.O. Rajbari, P.S. & Sub-Division:
      Dharmanagar, District: North Tripura.

                                                             .....Petitioner

                                -V E R S U S-

1.    Smti. Monoara Begam Choudhury, wife of Nabab Ali
      Choudhury, C/o Rusmat Ali, of village Kacharghat, P.O., P.S. &
      Sub-Division: Kailashahar, District: Unakoti Tripura.

                                                 ..... Petitioner-respondent.

2. The State of Tripura, represented by the Secretary, Dept. of Home.

.....Pro-Respondent.

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD

For Petitioner(s) : Mr. S. Bhattacharjee, Advocate.

For Respondent(s)           :      Mr. S. Ghosh, Addl. P.P.
Date of hearing             :
and delivery of
judgment and order          :      15.03.2022
Whether fit for reporting   :      NO


                    JUDGMENT & ORDER [ORAL]

Heard Mr. S. Bhattacharjee, learned counsel appearing for the Petitioner. Also heard Mr. S. Ghosh, learned Addl. P.P. appearing for the respondent-State.

[2] Before this matter is taken up for hearing, an endeavour was taken before the Lok Adalat for reconciliation of the dispute, but for stiff resistance, the dispute could not be settled. Be that as it may, the

fundamental grounds taken in this petition for challenging the order dated 27.02.2020 delivered in Crl. Misc.(125) 74 of 2019, by the Judge, Family Court, Kailashahar, Unakoti, Tripura viz. (i) whether the respondent No.1 being the legally married wife of the opposite party has been forced to live separately from her husband and is unable to maintain herself and her minor daughter and (ii) whether the opposite party being the husband of the respondent No.1 and father of the minor daughter, refused to provide maintenance to them though having sufficient means?

[3] The facts which set the criminal law in motion, in short, are that at about 35 years back the respondent entered into wedlock with the petitioner as per Muslim Rituals and due to marriage two daughters were born to them. After the birth of those two daughters, mental and physical torture was started upon the respondent and threatened the respondent to sale the parental property of the respondent. The respondent was subjected to torture by the petitioner. As the respondent could not bring the money, the petitioner again entered into wedlock with one Ishkara Begam without the consent of the respondent and thereafter, at about 1 year back, the respondent was subjected to assault by the petitioner and Ishkara Begam by entering in her room.

[4] Several village meetings were made but, of no result. Thereafter, on 05.01.2019, the petitioner and Ishkara Begam (second wife) assaulting the respondent thrown out herself from the house of the petitioner. The respondent anyhow saves her life with the help of neighbouring people and took shelter in the house of her elder daughter Jaya Begam Choudhury. Thereafter, also the respondent was subjected to torture and on 25.05.2019, the respondent came to the house of her daughter and again assaulted the respondent and threatened her to give him divorce legally, otherwise, result will be fatal. The respondent is passing her days in distress condition and the petitioner is a driver by profession

and has some rooms on rent from which he collected rent and thus, his total monthly income is Rs.40,000/-.

[5] Mr. S. Bhattacharjee, learned counsel appearing for the petitioner has submitted that after receiving summon, the petitioner could not attend the Court due to his illness and also advised by the doctors for taking bed rest from 06.11.2019 to 09.02.2020. Prior to that, on 07.09.2020, the petitioner was also advised to take bed rest for one month. He has further submitted that after recovery, in the month of February, 2020, more specifically on 10.02.2020, the doctor advised the petitioner to do work and after that he appointed an advocate to conduct his case which was fixed on 19.02.2020.

[6] He has further contended that, the advocate appeared before the learned Judge, Family Court, Kailashahar, Unakoti, Tripura, but, the prayer of the said advocate on behalf of the petitioner was rejected and thereafter, from 20.02.2020 to 14.09.2020, the petitioner was again advised to take rest. Copies of the prescriptions and medical certificates are Annexures-2, 3 and 4.

[7] Mr. Bhattacharjee, learned counsel argued that for the above mentioned reasons, the petitioner could not approach this Court for redress earlier. The petitioner sustained brain stroke in the middle part of December, 2020 and brain scan was done on 21.12.2020 and found some difficulties Annexure-5 to this petition. He has further submitted that after that brain stroke the petitioner was unable to do any work of his own.

[8] For the entire period of proceedings, when the case was on board for its various stages, the petitioner was remain ill thus, could not appear before the learned Court below. The learned Family Judge, Kailashahar, Unakoti Tripura passed ex-party order against the petitioner herein.

[9] Mr. Bhattacharjee, learned counsel for the petitioner has further contended that the Court below ought to have appreciated and considered that as the petitioner was ill and advised to take bed rest during the pendency of the proceeding, he ought to have given opportunity to contest the same. He has further argued that due to illness of the petitioner he was unable to contest or represent himself before the Court below. As such, the learned Family Judge has passed the order violating the principle of natural justice and thus, required to be interfered with.

[10] Being aggrieved and dissatisfied with the said judgment and order dated 27.02.2020, the petitioner has preferred this present revision petition.

[11] On the basis of the statement of Mr. Bhattacharjee, let us discuss the necessary points which are relevant for consideration. The respondent-wife in her evidence has relied upon the Aadhar Card of herself and her younger daughter as proof of marriage. She also relied upon her Voter Card and permanent residence certificate as proof of marriage. All these four documents marked as Exbt.1, 2, 3 and 5 indicated that the petitioner as the husband and father of the witnesses respectively. The respondent has also relied upon a Khatian marked as Exbt.4 which indicates that he has landed property to the tune of 281 sataks.

[12] The daughters of the petitioner have supported their mother regarding the second marriage of their father and the physical assault committed on her by their father and step mother. They also confirmed that their father earns around Rs.40,000/-.

[13] In such a circumstances, this Court is constrained to return a finding that the respondent No.1 has successfully established the fact that she is the legally married wife of the petitioner and because of torture by the petitioner on her; she has been staying separately and is unable to

maintain herself. The respondent has stated that the petitioner is a driver by profession, possess landed property and earns Rs.40,000/- per month. In this regard, she has adduced a khatian No.2605 of Tehsil Dharmanagar Town land measuring 281 sataks recorded in the name of the petitioner.

[14] Having appreciated the submissions and observations made by the learned court below and scrutinized the records as placed before this Court, this Court finds no analysis how the Judge, Family Court has inferred that the petitioner has been earning Rs. 40,000/- per month.

[15] On analyzing the various components relating to income such as the petitioner's capacity of maintaining the family and accordingly, this Court is of the view that the direction to pay maintenance of Rs. 10,000/- to the respondent No. 1 is required to be interfered with. As such, the respondent No. 1 would get Rs. 7,000/- per month and the same amount to be sent to the Savings Bank Account of the respondent No.1, Smti. Monoara Begam Choudhury and remit the same within 10th day of every English Calendar month. Remittance charges, if any, shall be borne by the petitioner. It is made clear that the arrear maintenance, if any, shall be paid to the respondent within a period of two months.

[16] In that view of the matter, the present criminal revision petition stands party allowed being modified to the extent as indicated above.

JUDGE

A.Ghosh