Smt. Mitali Chatterjee ... vs Sri Shankar Chakraborty
2022 Latest Caselaw 382 Tri

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                     HIGH COURT OF TRIPURA
                        A_G_A_R_T_A_L_A
                      Crl. Rev. P. No. 29 of 2021

1.    Smt. Mitali Chatterjee (Chakraborty), wife of Sri Shankar
      Chakraborty,

2.    Master Saswata Chakraborty, son of Smt. Mitali Chatterjee
      (Chakraborty), and Sri Shankar Chakraborty,

      Both are the residents of C/o late Bimal Kumar Chatterjee,
      Ranjitnagar, P.O. Ramnagar, P.S. West Agartala, Sub-Division:
      Agartala, District: West Tripura, 799002.

      (The petitioner No.2 being minor is represented by his natural
      guardian and mother, the petitioner No.1)

                                                       .....Petitioners

                              -V E R S U S-

1.    Sri Shankar Chakraborty, S/o late Krishnapada Chakraborty,
      resident of Village Joynagar Lane No.3, P.S. West Agartala, P.O.
      & Sub-Division, District: West Tripura, Pin-799001, presently
      posted as Assistant Teacher, Jawhar Navodaya Vidyalaya (JNV),
      Banduar.

2.    The State of Tripura.

                                                    ..... Respondents

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD

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

For Respondent(s)         :      Mr. H. K. Bhowmik, Advocate.
                                 Mr. S. Debnath, Addl. P.P.
Date of hearing           :      25.03.2022
Date of delivery of
judgment and order        :      31.03.2022
Whether fit for reporting :      YES/NO





                          JUDGMENT & ORDER

Heard Mr. S. Lodh, learned counsel appearing for the petitioners. Also heard Mr. H. K. Bhowmik, learned counsel and Mr. S. Debnath, learned Addl. P.P. apapring for the respondents.

[2] This criminal revision petition has been filed under Section- 19(4) of the Family Courts Act, 1984, against the impugned order dated 06.01.2018 in Misc.530 of 2016 by the learned Judge, Family Court, Agartala, West Tripura, whereby and whereunder, the learned Judge, Family Court, Agartala, West Tripura, did not grant maintenance allowance in favour of the petitioner No.1.

[3] The facts which set the criminal law in motion, in short, are that the petitioner No.1 and respondent No.1 are the husband and wife and their marriage was solemnized on 28.07.2008 as per Hindu Rites and Customs in the parental home of petitioner No.1. Due to wedlock, the petitioner No.1 gave birth to a male child i.e. petitioner No.2 on 11.05.2009.

[4] The petitioner No.1 for herself and for her minor son i.e. the petitioner No.2 filed an application under Section-125 of Cr. P.C. before the learned Judge, Family Court, Agartala, West Tripura, claiming monthly maintenance allowances against the respondent No.1 and the said case was registered and marked as Misc.530 of 2016.

[5] In the application for maintenance, the petitioners alleged that just after the marriage, both the petitioner No.1 and the respondent No.1 started to reside in the official quarter of the respondent No.1 at Khowai. During her stay, she was mentally and physically tortured by the respondent No.1. It is further stated that when the petitioner No.1 was

pregnant, she was brutally assaulted by the respondent No.1 and on hearing the same, her family members went there and tried to make understand to the respondent No.1.

[6] After few days as she was pregnant, she came to her parental home, and gave birth to a male child (petitioner No.2)( on 11.05.209 at nursing home. After few days of birth of child, the respondent No.1 was transferred from Khowai to Banduar and accordingly, the petitioner No.1 along with petitioner No.2 went there and stayed for a considerable period. During her stay at Banduar, she was again physically and mentally tortured by the respondent No.1. Lastly, in September, 2012, she was brutally assaulted by the respondent No.1 and finding no other alternative, the petitioner No.1 took shelter to her parental home along with her child i.e. the petitioner No.2 and till date she is staying in her parental home.

[7] After filing of the maintenance petition, the learned Court below issued notice upon the respondent No.1 and on receipt of the same, he appeared and submitted written objection denying all the allegations. To prove the case, the petitioners adduced 3(three) witnesses including herself and on the other hand the respondent No.1 also adduced 3(three) witnesses including himself.

[8] After hearing both the parties, the learned Court below vide impugned judgment and order dated 06.01.2018 granted maintenance allowance to the petitioner No.2 at the rate of Rs.15,000/- per month, but did not grant any maintenance allowance to the petitioner No.1 with the following observations:

"Assuming the net salary of the opposite party to be Rs.60,000/- as 7th CPC pay hike, 1/4th i.e. Rs.15,000/- is fixed as maintenance per month for the petitioner No.2 w.e.f. 01.01.2018. Since admittedly, the opposite party

pays maintenance and no interim prayer is made, I find no justification to award maintenance from date of filing of this petition.

For convenience, the opposite party is directed to pay maintenance Rs.15,000/- to the Bank Account of the petitioner No.1 by 10th day of every English Calendar month. Remittance charges, if any, will be borne by the opposite party."

[9] Being aggrieved by and dissatisfied with the impugned judgment and order dated 06.01.2018, passed by the learned Judge, Family Court, Agartala, West Tripura in Misc. 530 of 2016, the petitioners prefer this present revision petition.

[10] In support of the case of the petitioners, Mr. S. Lodh, learned counsel appearing for the petitioners has submitted that the Court below committed serious error in law and facts in passing the impugned order and is bad in law on account of misreading and non-reading of evidence on record. He has further submitted that the learned Court below failed to appreciate the depositions of PWs.1, 2 and 3. PW-1 has vividly described how she was tortured by the respondent No.1 and the same was corroborated by PWs.2 and 3. The learned Court below failed to appreciate the same and came to a wrong conclusion that the deposition of PW-1 was not corroborated by other witnesses.

[11] He has further contended that the Court below committed serious error in appreciating the depositions of PW-1. He has categorically stated the reasons for leaving the matrimonial home. The Court below most illegally disbelieved PW-1 about the physical torture on the ground that she did not approach to police or Tripura Women's Commission. It is common place knowledge that there are so many women who always want to maintain the matrimonial tie alive and do not want to approach to the police or other authorities. Thus, this finding of the Court below is totally unjustified and erroneous. The petitioner No.1 left the matrimonial home is

totally erroneous and contrary to the evidence on record. Hence, the impugned order is liable to be interfered with.

[12] On the other hand, Mr. Bhowmik, learned counsel appearing for the respondent No.1 has stated that immediately after the marriage, the petitioner No.1 always used to tell him that he should transfer all his properties and belongings to her as he is likely to die very shortly. He has further stated that when she became pregnant he sent her to her parent's house for her well being. The petitioner No.1 told him that she needed the money for rearing her child and for cooking for him. When the respondent No.1 objected to that affect the petitioner No.1 assaulted him with her shoes. On many occasions the respondent No.1 was physically assaulted and verbally abused by the petitioner No.1. The respondent No.1 regularly pays maintenance to his wife and son.

[13] Mr. Bhowmik, learned counsel further averred that the petitioner No.1 deserted him since 2012. Further he stated that the mother of the respondent No.1 is old aged and he has to look after as she was suffering from various ailments. He has a tumor in his chest which keeps repeating itself. Since, 2009 he has been paying Rs.10,000/- for his wife and son voluntarily.

[14] Conspectus reading of evidence on record will show that PW- 3, the mother of the petitioner is a hearsay witness. She did not see any torture on the petitioner, only heard it from the petitioner who does not say that she told about her ordeal to her mother. It appears neither visited her daughter's matrimonial home nor the official residence of the respondent No.1.

[15] Evidence of PW-2 estranged sister-in-law of the respondent is also not credit worthy as she admits that she left her matrimonial home in 1995 much prior to marriage of the petitioner with the respondent in 2008. It appears that she is deposing out of her grudge against the respondent's family. She is not a reliable witness.

[16] A wife not living with her husband is entitled to maintenance from her husband when she has sufficient reason to stay apart. The petitioner No.2's parentage is not denied. He stays with his mother, the petitioner No.1. It is not disputed that the petitioner No.1 is not gainfully employed. Thus, she needs support from the respondent to raise the petitioner No.2.

[17] The way the petitioner has projected the case and being found serious contradictions and inconsistencies in the statements in course of trial, it would be very difficult for this Court to believe the projected case of the petitioner. The discrepancies which are found in this case as analyzed above, appeared to be abnormal in nature which is not expected from a normal person. After cautious scrutiny of the evidence and considering the entire material object, this Court is of the considered opinion that justice would be met if the ration of maintenance is enhanced from the maintenance allowance as passed by the Court below.

[18] The learned Court below assuming the net salary of the respondent No.1 has allowed the maintenance @ 15,000/- per month for the petitioner No.2. This Court considering the entire scenario and the future expenses of the petitioner No.1 feels that it would be apposite if the maintenance allowance is granted to the petitioner No.1 amounting to Rs.7,000/- per month, ends of justice would be met. As such, the petitioners are entitled to get Rs. 22,000/- i.e. [Rs.15,000/- for the petitioner No.2 and Rs.7,000/- for the petitioner No.1] per month as maintenance w.e.f. 01.04.2022. It is made clear that the respondent

No.1 shall pay the maintenance allowed as aforestated to the Bank account of the petitioner No.1 by 10th day of every English Calendar month. Remittance charges, if any, will be borne by the respondent No.1.

[19] With the modification in the above terms in regard to the maintenance allowance, the present petition stands partly allowed and thus, disposed off. Pending application, if any, also stands disposed off.

JUDGE

A.Ghosh