Sri Sambhu Charan Jamatia vs Smti. Premkanya Jamatia
2022 Latest Caselaw 311 Tri

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                     HIGH COURT OF TRIPURA
                        A_G_A_R_T_A_L_A

                       Crl. Rev. P. No. 14 of 2021

1.    Sri Sambhu Charan Jamatia, son of Sri Tirtha Kr. Jamatia,
      resident of Rangmala, P.S. Bishramganj, District: Sepahijala,
      Tripura.

                                                          .....Petitioner

                                -V E R S U S-

1.    Smti. Premkanya Jamatia, wife of Sri Sambhu Charan Jamatia,
      daughter of Krishna Kr. Tripura.
2.    Sri Suraj Jamatia, son of Sri Sambhu Charan Jamatia.

3.    Sri Prabin Jamatia, son of Sri Sambhu Charan Jamatia

      All are residents of Dhwanirampur, P.S. Sonamura, Sepahijala
      Tripura

      [O.P No.2 & 3 being minor represented by their mother i.e. legal
      guardian at O.P No. 1, Smti. Premkanya Jamatia].

                                                   ..... Opposite parties.

                       B_E_F_O_R_E
          HON'BLE MR. JUSTICE T. AMARNATH GOUD

For Petitioner(s)           :      Mr. Asutosh De, Advocate.
For Opposite parties(s)     :      None.
Date of hearing             :
and delivery of
judgment and order          :      15.03.2022
Whether fit for reporting   :      NO
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                     JUDGMENT & ORDER [ORAL]
              Heard Mr. Asutosh De, learned counsel appearing for the
Petitioner.

[2]           This present criminal revision petition has been filed under
Section-19 of the Family Courts Act, 1984 against the judgment and order
passed on 26.02.2021 in connection with Crl. Misc. No. 20 of 2019,
whereby and whereunder, the learned Judge, Family Court, Sepahijala,
Tripura, directed to pay maintenance of Rs.9,000/- per month to the
respondent herein and two others who are minors. Also, directed that the

maintenance allowance should be paid all and well, within 7 days of every English calendar month.

[3] The facts which set the criminal law in motion, in short, are that the respondent-wife got married to the petitioner about 12 years ago from the date of filing this case according to Hindu rites and customs. At the time of marriage, as per demand of the petitioner, the father of the respondent gifted Rs.50,000/-, 3 vories of gold ornaments, furnitures and other valuable articles to the petitioner-husband and altogether the father of the respondent-wife spent more than Rs. 3 lakhs. Subsequently, out of wedlock, she gave a birth two male children, namely, Suraj Jamatia (11years) and Prabin Jamatia (5 years), the respondents No. 2 and 3. It has been stated that after 5/6 years of marriage, the petitioner-husband and his mother out of conspiracy drove out the respondent No.1 from their house with an intention to arrange for second marriage of the petitioner-husband. They also demanded Rs.2,00,000/- from the respondent-wife to be brought from her parental house and also inflicted both physical and mental torture upon the respondent No.1 for fulfillment of their demand.

[4] Thereafter, the family member of the respondent No.1 arranged several village meetings for settlement of the dispute and for good future of the respondent No.1 sent her to her matrimonial home but all in vain. On 10.01.2019, at about 10.00am, the petitioner and his family members severely assaulted the respondent-wife and also tried to kill her by strangulating her by way of holding her neck. When the children of the parties raised hue and cry, the husband and his family members found that the neighbouring people were coming and then they left the respondent. Thereafter, the respondent-wife under compelling circumstances takes shelter in her parental house along with her children.

[5] On 09.03.2019, the petitioner went to the parental house of his wife at about 9.00pm along with a vehicle and again demanded Rs.2,00,000/- from the respondent-wife. When she refused to the demand made by her husband, the petitioner herein, inflicted fists and blows upon her and after hearing her screaming the petitioner-husband fled away from her parental house. It has been stated that the respondent No.1 leading her life in extreme financial hardship along with her minor children, she has no source of income for her livelihood. The husband of the respondent No.1 has not given any single farthing towards their maintenance. It has been further stated that the petitioner has landed property and rubber garden and his monthly income is Rs.40,000/-.

[6] In support of the case of the petitioner, Mr. De, learned counsel for the petitioner has submitted that the respondent-wife is an ill- tempered lady and she used to misbehave with her in-laws. The respondent No.1 started to create pressure upon the petitioner to get separate from their joint mess, but the petitioner did not agree. On this count, the wife- respondent used to leave her matrimonial home on and after for a long

time without any reasons. The respondent No.1 tried to avoid the company of the petitioner on the pretext that he is a poor person and the petitioner did not fulfill the luxury demands of the wife-respondent. In the month of December, 2018, the respondent-wife went to her parental home accompanied with her two minor children for refreshment and thereafter she disagreed to return back to her matrimonial home.

[7] It has been further stated that one Suman Debbarma, Manuranjan Debbarma, Sumanta Debbarma and the petitioner himself went to her parental home to bring back to her matrimonial home but, she told that she has voluntarily withdrew herself from the society of the petitioner due to poverty of the petitioner. At the relevant point of time the respondent-wife also stated that she has joined a government contract job (no work no pay) at Matinagar forest Bit Office near her parent's house and on every working day she earns Rs.300/- from that office. He has further stated that the petitioner is a day labour and earns of Rs.3,000/- to Rs.4,000/- per month.

[8] Having heard the learned counsel for the parties and the evidence on record, the learned court below has observed as under:

"Considering the aforesaid facts and circumstances the O.P. namely, Sri Sambhu Charan Jamatia is hereby directed to pay a maintenance allowance of Rs.9,000/- (nine thousand) only in total to the petitioner wife and her two minor children from the date of application for maintenance.

The O.P. is further directed to pay the amount of Rs.9,000/- (nine thousand) only as maintenance allowance to the petitioners per month within the 7th day of every English calendar month by way of money order after remitting the cost of money order.

Since the maintenance allowance has been allowed from the date of application for maintenance, the OP is also directed to pay the arrears of the said maintenance allowance to the OP within one year from the date of passing of this order."

[9] Being aggrieved by and dissatisfied with the judgment dated 26.02.2021 in case No. Crl. Misc. 20 of 2019, the petitioner herein, has preferred this present petition.

[10] For the sake of convenience, let us discuss the points as formulated by the learned count below. In the petition seeking maintenance and from the evidence of the respondent No.1 and her witness, it reveals that she has been tortured by the petitioner-husband. She deposed that after marriage she was well in her matrimonial home for about 5/6 years and thereafter, the husband of the respondent No.1 along with his family members inflicting both physically and mentally on the pretext that by marrying her he has been cheated and he demanded Rs.2,00,000/- from her to be brought from her parental house and following that he sent her to her parental home along with her minor children. Owing to the said dispute, several village meeting took place to amicably settle the matter but, all in vain. Thereafter, on her parents advice, she came back to her matrimonial house in the hope of happy days.

[11] She also stated that on 10.01.2019 at about 10.00am the petitioner along with his family members tried to kill her by holding her neck and severely assaulted her to which her children raised hue and cry and neighboring people came and thus she was saved. She has further averred that on 09.03.2019 the petitioner came to her parents house and assaulted her again for fulfillment of his demand of Rs.2,00,000/- but, after making hue and cry the petitioner fled away. PW-2, the son of the wife- respondent has supported the said version of the respondent No.1.

[12] PW-2, the son of the respondent-wife is of 14 years of age on the date of recording his evidence and there is nothing on record to show that he was unable to understand the questions put to him and he was not

capable of giving rational answers. The incident of torture as had been narrated by the respondents No.1 and 2 have all taken place inside the precincts of the matrimonial house of the petitioner-husband and his family members. The evidence of PW-2 i.e. the son of the respondent No.1 cannot thus at all be thrown overboard on the pretext that he is the son of the wife- respondent and he has been tutored.

[13] Learned counsel for the petitioner during his arguments has submitted that the evidence of the wife-respondent has only been supported by her son i.e. PW-2 and her evidence lacks sufficient corroboration and thus cannot at all be relied with.

[14] In the case of Rupa Paul v. Tapash Dhar, reported in 2013 (1) GLT 485, the Hon'ble Gauhati High Court has observed thus:

"The essence of Section 125 of Cr.PC is to grant maintenance and not refusl of the same. The Courts exercising jurisdiction under Section 125 of Cr.PC must keep in mind the very object of the provision and appreciate the facts and circumstances keeping in mind the legislative intents and purposes. The Court must take into consideration the broader aspect of the law and should not get swayed by the technicalities and the pits and holes here and there in the evidence and materials on record. It should appreciate the facts with broader possibility and should not reject the prayer of maintenance, as a matter like other criminal cases, taking into consideration the technicalities. Maintenance is not for luxury but for survival. After marriage it is the duty of the husband to provide shelter and maintenance to the wife. If he neglects, the wife is legally entitled to have it through the Court by petition under this Section. While the wife, children and infirm parents approaching the Court of law being helpless, for maintenance to survive, the Courts should not shut its eye and close the door which will definitely put the petitioner in duress, vagrancy and starvation. It is true that the maintenance should be allowed keeping in mind the ability of the respondent i.e. his income, and other attending factors."

[15] It has already been discussed above that in a matrimonial proceeding the children of the parties can be termed as good witnesses. It also remains a fact that maintenance is for survival of the helpless wife and

children and in those proceedings the Court should appreciate the facts with broader possibility and should not reject the prayer of maintenance, as a matter like other criminal cases, taking into consideration the technicalities. Thus, the mere fact that the evidence of the wife petitioner has been supported by her son only, does not pose as a hindrance in considering the overall evidence of the petitioner side present before the Court and thus, this Court is also not inclined to negate the evidence of the respondents side on mere technicality that the evidence of the wife- respondent has only been corroborated by her son.

[16] The fact also remains that the evidence of the respondent has emerged out to be sufficiently cogent and the evidence regarding the incidents of torture meted upon the wife-respondent, could not at all be negated by the petitioner herein during their cross-examination as some mere denials have been taken in this respect. The petitioner has submitted that after marriage the respondent No.1 used to avoid the petitioner on the pretext that he is a poor person and he did not fulfill her luxury demands. After 2/3 years of marriage the respondent-wife creating pressure to live separately from joint mess but, when the petitioner was not agree to this aspect the wife-respondent leave the matrimonial house with the children and thereafter she did not agree to return back to her matrimonial house. In this count, no such cogent evidence could be brought forward by the petitioner to establish that the wife-respondent has voluntarily left the house of the husband-petitioner.

[17] Instead, from the evidence of the respondent No.2, the son has sufficiently become evident on record that the wife-respondent was compelled to take shelter in her parental house along with her children following severe torture by the petitioner-husband upon her. It has also

been appeared on evidence that the husband-petitioner demanded huge amount of money from the wife-respondent to be brought from her parental house.

[18] In Siraj Mohammed Khan Janmohamad khan v. Hafizunnisa Yasinkhan, reported in AIR 1981 SC 1972, Smt. Savitri Pandey v. Judge Family Court Allahabad, reported in 2004 CrLJ 3934 (All), Smt. Mithelesh Kumari v. Bindhwasani, reported in 1990 CrLJ 830 (All), "it has been held by the Hon'ble Supreme Court and also by the Hon'ble High Allahabad High Court that if the wife is tortured by her husband for demand of dowry by her husband, parents or relations, such an apprehension also would be manifestly a reasonable justification for the wife's refusal to live with her husband."

[19] In this case, there is evidence that the wife-respondent was tortured by her husband for demand of dowry and she was also ill-treated by her husband in several times. This, the wife-respondent in this case, as appeared on evidence, has sufficient cause to stay away from her husband in her parental house.

[20] Let us discuss about the sufficient means of the petitioner herein to maintain his wife and children. The respondent-wife has stated in her evidence that her husband is an able-bodied person. He got rubber garden and he is also a mason. His income from all sources is Rs.40,000/-. She has deposed that she does not have any source of income of her own to lead her days in extreme financial hardship to which, her son i.e. respondent No.2 herein corroborated her evidence. It reveals from the evidence that the statement made by the respondent No.1 and 2 is more reliable regarding the means of income of the petitioner-husband.

[21] In this regard the wife-respondent has submitted an affidavit wherefrom it reveals that the expenditure for maintenance of the minor children towards food, clothing, medical expenses, education is Rs.10,000/- (Rs.3,000+7,000/-) per month and she claimed for Rs.21,000/- i.e. Rs.7,000/- for each of the respondents.

[22] I have considered the said claim amount and all the materials on record. therefore, considering the facts and circumstances of the case and the totality of the matter, it appears to this Court that an amount of Rs.9,000/- i.e. Rs.3,000/- for each of the respondents will be just and proper to maintain the livelihood of the respondents.

[23] Since the petitioner herein has failed to make out his case before the Courts below, this Court has no hesitation to say that in the revision, appreciation of the factual issues is not permissible. Accordingly, the instant revision petition is dismissed affirming the judgment and order dated 26.02.2021 passed by learned Judge, Family Court, Sepahijala, Tripura, in case No. Criminal Misc. 20 of 2019.

JUDGE

A.Ghosh