Smt. Santa Chakraborty vs Sri Kartik Chakraborty
2024 Latest Caselaw 78 Tri

Tripura High Court

Smt. Santa Chakraborty vs Sri Kartik Chakraborty on 25 January, 2024

                        HIGH COURT OF TRIPURA
                              AGARTALA
                        Crl. Rev. P. No.7 of 2023

  Smt. Santa Chakraborty,
  W/o Sri Kartik Chakraborty,
  D/o Sri Shaktipada Chakraborty
  Resident of Khayerpur, Mudda Para,
  P.O - Khayerpur, P.S - Bodhjungnagar,
  District - West Tripura
                                                        ----Petitioner(s)
                                 Versus

1. Sri Kartik Chakraborty,
   S/o Sri Kalipada Chakraborty
   Resident of Lawgang, Sonar Tilla,
   P.O & P.S - Santirbazar,
   District - South Tripura
2. The State of Tripura
   Represented by the Secretary,
   Home Department, Government of Tripura
                                                      ----Respondent(s)

Along with Crl. Rev. P. No.10 of 2023

Shri Kartik Chakraborty, Son of Sri Kalipada Chakraborty resident of Lowgang, Sonartilla, P.O + P.S. Santirbazaar, District - South Tripura

----Petitioner(s) Versus

1. Smti. Santa Chakraborty, Wife of Sri Kartik Chakraborty, D/O Sri Saktipada Chakraborty resident of Khayerpur, Muddapara, P.O. Khayerpur, P.S. Bodhjungnagar, District - West Tripura;

2. The State of Tripura

----Respondent(s)

For Petitioner(s) : Mr. Kundan Pandey, Adv.

For Respondent(s) : Mr. S. Ghosh, Addl. P.P, Mr. S. Lodh, Adv.

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

  For Respondent(s)     :     Mr. S. Ghosh, Addl. P.P.,
                              Mr. K. Pandey, Adv.

  Date of hearing       :     19.01.2024

  Date of delivery of
  Judgment & Order      :     25.01.2024

  Whether fit for
  reporting             :     YES

            HON‟BLE MR. JUSTICE BISWAJIT PALIT

                         Judgment & Order

This Criminal Revision Petition being Crl. Rev. P.

No.7 of 2023 has been filed by the petitioner Smt. Santa

Chakraborty before this Court with a prayer for enhancement of

maintenance allowance granted by the Learned Additional

Judge, Family Court, Agartala in connection with Case No. Crl.

Misc. No.124 of 2020 under Section 125 of Cr.P.C from

Rs.5,000/- to Rs.20,000/- per month invoking the power

conferred under Section 397 of Cr.P.C. Similarly, the husband

Sri Kartik Chakraborty has also filed another petition numbered

as Crl. Rev. P. No.10 of 2023 before this Court for setting aside

the order dated 16.12.2022 passed by Learned Additional

Judge, Family Court, West Tripura, Agartala in the same case

Crl. Misc. No.124 of 2020 under Section 125 of Cr.P.C. wherein

the Learned Court below awarded maintenance in favour of

Smt. Santa Chakraborty at the rate of Rs.5,000/- per month

from the month of December, 2022 invoking the provision

provided under Section 19(4) of the Family Courts Act. Since

the parties of both the cases are same and the subject matter is

also same and identical so by this common judgment, the

matter is taken up for consideration and decision accordingly.

2. The petitioner Smt. Santa Chakraborty preferred

one petition under Section 125 of Cr.P.C. before the Learned

Additional Judge, Family Court, Agartala which was numbered

as Crl. Misc. No.124 of 2020. In her application for

maintenance, she took the plea that her marriage was

solemnized with OP, Sri Kartik Chakraborty on 02.07.2001 as

per Hindu Rites and Customs at Siddhi Ashram, in presence of

the guardians of both the sides. In the marriage, as per demand

of her husband, gold ornaments, wooden furniture and other

articles were given and thereafter both of them started their

conjugal life as husband and wife peacefully. She further

asserted that her husband was a T.S.R. personnel and out of

their wedlock, a male child was begotten who was 15 years old

at the time of filing of the claim petition. The petitioner further

asserted that after marriage, her husband started misbehaving

with her every now and then and he used to come back at

home in the night in drunken condition and tortured her both

mentally and physically. Not only that her husband also used

slang languages to her as well as to her parents and in the year

2018, her husband suddenly left the quarter and started

residing in a rented house. It was further asserted that the

petitioner was busy in performing household works, but her

husband used to suspect her and her husband never changed

his behaviour and every night he used to cause torture upon

her on false allegations. Finally, her husband after physically

assaulting her drove her out from her matrimonial home and

threatened her not to come back. It was further asserted that

during that period, father of the petitioner became ill, so finding

no alternative, she took shelter in the residence of her friend at

Ranirbazar and later on she came to know that her husband

filed one missing diary before police. Subsequently, in the

month of November, 2018, her husband pressurized and

threatened her to sign one mutual divorce application which she

refused to sign. But later on being assaulted by her husband,

she had to sign the paper. The case was dismissed as she did

not appear. The petitioner further asserted that she repeatedly

requested her husband to take her back but her husband

refused. In the month of January, 2019 when the petitioner was

residing at Ranirbazar, her husband appeared all on a sudden

with his friends and requested her to put her signature on a

stamp paper, assuring her to take her back but after putting

signature, her husband refused to take her back and made a

prayer before the Court for seeking divorce without providing

any maintenance or alimony. The petitioner further asserted

that her husband, the opposite party (for short, OP) was

serving at 11th Bn. T.S.R at Gokulnagar and his monthly salary

was Rs.45,000/-. During that period, her husband neither

provided any maintenance to her nor took any step for

resumption of conjugal life. Hence, she filed the petition

claiming maintenance.

3. On receipt of notice, the OP husband appeared

and filed objection and denied all the assertions of the

petitioner in her claim petition. In the written objection, the OP

husband took the plea that he was serving in TSR and used to

reside in Govt. quarter and his wife suddenly fled away from his

residence with another person when their minor son was at

school and he was busy in official works. On 11.10.2018 after

returning back to home, he found his wife missing. In this

regard, he made one GD entry at Bishalgarh Women PS but

Police could not trace her out. Subsequently, he came to know

that his wife fled away to Ranirbazar and knowing the same, he

came to Ranirbazar and informed the matter to Ranirbazar PS

vide GD entry No.23 dated 13.11.2018. That time OC

Ranirbazar PS intimated him about his wife that she was in the

house of one Bikash Chakraborty at Brajanagar. Thereafter,

both of them were brought to Ranirbazar PS. That time, the

petitioner disclosed that she was not willing to go with her

husband and preferred to live with Bikash Chakraborty saying

that she would marry him after taking separation from her

husband. Thereafter, her husband filed petition before the

Family Court seeking mutual divorce which was registered as

Case No.TS(Div)456 of 2018, but all on a sudden the petitioner

demanded Rs.5,00,000/- from him which he refused.

Furthermore, the OP husband stated that the petitioner

threatened him and on the date of hearing, she did not appear

before the Court so the divorce petition was dismissed. It was

further asserted by the OP husband that he filed one FIR

against the petitioner and said Bikash Chakraborty, which was

registered as Ranirbazar PS case No.63 of 2019 under Section

494/384/34 of IPC and on completion of investigation, police

laid charge-sheet against the petitioner and said Bikash

Chakraborty. It was further asserted that during investigation

police seized one notarized document signed by the petitioner

and said Bikash Chakraborty wherein it was asserted that on

10.10.2020, the petitioner left her husband voluntarily and

came to the residence of Bikash Chakraborty and since then she

has been living with said Bikash Chakraborty. Finally, the OP

husband took the plea that his wife was living in adultery and

prayed before the Court to dismiss the claim petition.

4. To determine the case, Learned Court below

framed three points for determination which are narrated

below:

"Points for Determination :

i) Whether the petitioner has been subjected to torture by the 2nd party and that she has sufficient reasons to live separately from him?

ii) Whether the 2nd party has been neglecting and refusing to pay maintenance to the 1st party, inspite of having sufficient means?

iii) Whether the petitioner is entitled to get maintenance from the 2nd party and if so, what would be the quantum?"

5. Before the Learned Court below, the petitioner

adduced two witnesses including herself and relied upon one

documentary evidence marked as Exhibit-1 i.e. the letter dated

07.03.2021 issued by Commandant, 11th B.n TSR.

Witnesses of the 1st Party :

PW-1 : Smt. Santa Chakraborty & PW-2 : Sri Shaktipada Chakraborty.

Documents of 1st Party :

Exbt-1 : The letter dt 07.03.2021 issued by

the Commandant, 11 Bn. TSR

6. On the other hand, the OP husband adduced two

witnesses including himself and his son as OPW-1 and OPW-2

respectively and relied upon some documentary evidences

which were marked as exhibits in the case.

Witnesses of the 2nd Party :

OPW-1 : Sri Kartik Chakraborty OPW-2 : Sri Koushik Chakraborty Documents of 1st Party :

Exbt-A series : The OP in support of his case has submitted printed form of FIR and his ejahar dt. 06.06.2019 in connection with Ranirbazar PS case no.2019/RNB/063, dt.06.06.2019 u/s 494/384/34 of IPC.

Exbt-B : Certified copy of chargesheet filed by Ranirbazar PS in c/w. Ranirbazar PS case No.2019/RNB/063, dt.06.06.2019.

Exbt-C : Certified copies of Order-sheets from 23.11.2018 till 30.03.2019 in c/w. TS(Div)456 of 2018.

Exbt-D : Certified copy of Order dt.20.03.2020 in c/w. PRC(WP) 190/20.

7. Finally, after considering the evidence on record

and also after hearing argument of both the sides, Learned

Court below granted maintenance in favour of the petitioner at

the rate of Rs.5000/- per month from the month of December,

2022 and challenging that order the petitioner has approached

this Court for enhancement of maintenance allowance and at

the same time, as already stated, the OP husband has preferred

another revision petition before the High Court for setting aside

the order passed by Learned Court below.

8. In course of hearing, Learned Counsel for the

petitioner-wife submitted that there is no dispute on record in

respect of the fact of marriage between the parties and the

husband during his cross-examination very specifically stated

that his monthly income is more than Rs.50,000/- per month

and since 2018 he did not provided any maintenance to the

petitioner-wife and his son is under his care and custody since

the year 2018 and obedient to him. So, Learned Counsel

submitted that from the act and conduct of OP husband, it is

very clear that the OP husband refused and neglected to

provide maintenance to his wife i.e. the petitioner since 2018

and inspite of admitting the fact that his salary is Rs.50,000/-

per month, the Learned Court below only awarded maintenance

at the rate of Rs.5,000/- per month, which needs to be

enhanced. Further, Learned Counsel submitted that as per law

the maintenance order should be made from the date of

application but the Learned Court below awarded the

maintenance from the date of order, for which the petitioner

has been seriously prejudiced. So, Learned Counsel for the

petitioner urged before the Court for sympathetic consideration

of the wife and to allow maintenance allowance from the date of

filing of the claim petition. It was further submitted that except

the maintenance case, no other case was filed by the petitioner

against her husband but the husband laid false and vexatious

allegation against her involving one person and levelled the

charge of living in adultery against her. Although, a charge-

sheet was filed against the petitioner but since the same was

not a public document so there was no scope to place any

reliance upon that document and just by mere filing of charge-

sheet, it cannot be said that the charges have been proved

against the petitioner and until and unless, the charge of

second marriage or living in adultery is proved by the OP

husband, there was no scope to deny maintenance by the OP

husband to the petitioner. But, he intentionally to evade

maintenance has laid a false and vexatious charge against his

wife i.e. the petitioner of this case. Learned Counsel for the

petitioner relied upon few citations.

9. In course of hearing, Learned Counsel for the OP

husband, first of all, submitted before the Court that from the

claim petition filed by the petitioner before the Learned Court

below, no where it is apparent when she had left her

matrimonial home rather she maintained illicit relation with one

Bikash Chakraborty and for that, she voluntarily left the

company of her husband and in presence of police personnel,

she confessed that she was not willing to go back to the

residence of the OP husband and on the basis of complaint of

the OP husband, a criminal case was registered wherein after

completion of investigation, the IO of that case submitted

charge-sheet against the petitioner and said Bikash

Chakraborty and furthermore, in view of the provision of

Section 125 of Cr.P.C., since she was living in adultery, as such,

she is not entitled to get any maintenance from her husband

and submitted before the Court to set aside the order passed by

the Learned Court below as the Learned Court at the time of

deciding the proceeding did not take into consideration all this

aspects. Learned Counsel further submitted that the OP

husband in his written objection in para 10, 11, 12 and 13 has

narrated everything in detail that the petitioner-wife has

voluntarily left her husband‟s residence and started conjugal life

illegally with one Bikash Chakraborty. So, in view of the

provision of 125 Cr.P.C, she was not entitled to get any

maintenance from her husband. Learned Counsel further

submitted that although the petitioner during her cross-

examination deposed that she has brotherly relation with Bikash

Chakraborty but to substantiate the allegation of OP husband,

she was supposed to produce said Bikash Chakraborty before

the Court to clear the entire cloud, which draws an inference

against the petitioner under Section 114(g) of the Evidence Act.

Section 114(g) provides as under:

"114. Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume-

(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"

10. Learned Counsel for the OP further submitted that

as per evidence on record, the petitioner left the OP husband

in the month of October 2018 which was also beyond

pleading and she filed the case in the year 2020 then during

this period how the petitioner survived, there was no

explanation in this regard from the side of the petitioner-wife.

It was further submitted that the father of the petitioner in

course of his examination stated that during his absence, the

petitioner stayed in a different residence but he could not say

being a father, where she resided in his absence after

voluntarily leaving her matrimonial home which shows that

the present petitioner all along maintained hostile attitude

against her husband and maintained illicit relation with that

Bikash Chakraborty which need to be taken into consideration

by this Court. He also drawn the attention of the Court that the

OPW-2, being the son of the parties during his examination-in-

chief stated that his mother voluntarily left his father in para 3

of his examination-in-chief but the petitioner save and except

denial, failed to counter the said allegation levelled by her son

which shows that her act and conduct was all along doubtful

and she had voluntarily left the company of her husband having

maintaining illicit relation with the said Bikash Chakraborty so

she is not entitled to get any maintenance but the Learned

Court below did not consider all these things and granted

maintenance at the rate of Rs.5,000/- per month which needs

to be set aside by this Court disallowing the petition filed by the

petitioner for enhancement of her maintenance.

11. I have heard detailed argument of both the sides.

It appears that there is no dispute on record in respect of the

marriage of the petitioner with the OP husband on 02.07.2001

as per Hindu Rites and Customs and out of their wedlock, one

male child was begotten to them who is presently staying with

his father and during their conjugal life no dispute popped up

between the parties as because there is no evidence on record

that either of the parties filed any case against each of them at

any point of time. So, I can come to the conclusion that from

the year 2001 to 2017, there was no major dispute between the

rival parties of this case but their actual dispute started from

the year 2018.

12. According to the petitioner, her husband used to

torture her and in the year 2018, she was driven out from her

matrimonial home by her husband and she took shelter in the

residence of a family friend/relative Bikash Chakraborty.

13. On the other hand, the OP husband took the plea

that in his absence, the petitioner left his residence on

11.10.2018 and went to the residence of one Biplab alias Bikash

Chakraborty and there in the residence of said Bikash

Chakraborty, she resumed adulterous life and knowing the

same, he came to Ranirbazar PS. The Police called both of them

but the petitioner refused to join him at her matrimonial home

and he filed case. Ultimately, the case ended in charge-sheet.

That was the main defence of the OP husband.

14. It is settled law that until and unless a person is

proved to be guilty, it cannot be said that the charges brought

against him/her is proved. The OP by his written objection did

not dispute his marriage with the petitioner and also did not

dispute that he resume conjugal life with the petitioner from the

date of his marriage till 10.10.2018 but thereafter as the

petitioner left his residence and went to the residence of one

Biplab alias Bikash Chakraborty, he presumed/assumed that his

wife was living in adultery with that person which she admitted

before PS. Until and unless the said case is proved beyond

doubt, there is no scope to come to any conclusion that the

allegation of adultery or living in adultery is proved against the

petitioner. Now from the evidence on record, it appears that the

petitioner to support her case adduced two witnesses including

herself. She, in her examination-in-chief supported her

assertions in the claim petition. During cross-examination by

her husband, she stated that earlier she and her husband filed

one divorce case on mutual consent but she did not participate

in the proceeding and denied the defence story laid by her

husband that she escaped with one Bikash Chakraborty and at

Ranirbazar PS she refused to go back to her matrimonial home.

Rather she specifically stated that said Bikash Chakraborty alias

Biplab is her brother in relation and she denied the fact of any

execution of any affidavit before notary, Shri Rajat Roy and also

denied her signature in the certified copy of the affidavit being

shown to her. Nothing more came out from her examination

save and except denial.

15. PW-2, Shaktipada Chakraborty is the father of the

petitioner. He in his examination-in-chief supported the version

of the petitioner but during cross-examination, he could not say

anything about filing of any divorce case on mutual consent and

also could not say when his daughter left her husband‟s house.

16. The OP as OPW-1 in course of his examination-in-

chief narrated the contents made by him in his written

objection. During cross-examination, he specifically stated that

his income is more than Rs.50,000/- per month and since 2018

he did provide any maintenance to the petitioner and he also

did not cite any person as witness on his behalf who were the

witnesses of the Ranirbazar PS case No.63/2009 in support of

his defence not even the IO and the OC. He also did not file any

case for RCR for getting his wife back nor submitted any copy of

GD entry dated 11.10.2018 made before Bishalgarh Women

P.S. He did not cite Bikash Chakraborty as witness in his case

nor Swapan Chakraborty, the priest of his marriage, also did

not cite Bishnupada Chakraborty, Dipak Debnath, Sunil Ch.

Ghosh and Rajat Roy as witnesses of his case to support his

defence.

17. OPW-2, Kaushik Chakraborty is the son of the

parties. He in course of his examination-in-chief tried to support

the version made by his father. During cross-examination,

nothing came out relevant.

It is quiet natural that the son who is under the

custody of the father would definitely support the version of his

father.

18. From the evidence on record, it appears that the

OP husband to substantiate the allegation levelled against the

petitioner did not adduce any material witness, who were the

witnesses of the charge-sheet of the case filed by him against

his wife and said Bikash Chakraborty. OP also failed to adduce

Rajat Roy as witness before whom according to the OP

husband, his wife i.e. the petitioner and said Bikash

Chakraborty made one declaration or affidavit. Neither took any

effort to produce that affidavit nor proved the signature of the

petitioner in the said declaration. The OP also failed to adduce

any witness/evidence to substantiate that the petitioner was

maintaining adulterous relation with Bikash Chakraborty alias

Biplab. In absence of clear cogent evidence on record, there is

no scope to come to any conclusion that the petitioner was

living in adultery as mentioned in Section 124(4) of Cr.P.C. So,

the submission of the Learned Counsel for the OP husband

cannot be accepted.

But at the same time, it is on record that from the

year 2018 the dispute started and due to that dispute, the

petitioner is staying separately from her husband. It is also on

record that since 2018, the OP husband did not provide any

maintenance to the petitioner, she is staying in the residence of

her father who was a retired T.S.R officer. So, evidently it is

clear that the dispute existed between the parties and due to

that dispute, both the parties are residing separately and the

present OP husband also refused/neglected to provide

maintenance. In my opinion, the allegation levelled by the OP

husband is so serious that it affects the chastity of a women in

a society like us. Until and unless that allegation is proved

beyond doubt, there is no scope to place any reliance upon the

said allegation in absence of material evidence on record which

the OP husband has failed to prove by way of defence before

the Learned Court below.

19. As I have already stated Learned Counsel for the

petitioner in course of hearing relied upon few citations. In

Amit Kumar Yadav v. Suman Devi and others in case

No.CRR(F)-384-2021 dated 19.09.2022, the Hon‟ble Punjab

and Haryana High Court in page 6 observed as under:

"The maintenance can be declined, in the event, it is proved and established that the wife is living in adultery. "Living in adultery"

means a continued adulterous conduct and not a single or occasional lapse. Solitary act of adultery or on isolated lapse of wife, will not disentitle the wife to claim the maintenance. The burden of proof of un- chastity is on the husband. Unless it is found that at the relevant point of time, the wife was actually living in adultery, she is not disentitled to claim maintenance. The

material on record must indicate that the wife was living in adultery shortly before or after the petition of maintenance has been instituted. It is not the case of the petitioner that shortly prior to the institution of the petition or subsequent thereto, the respondent no.1 is continuously living in adulterous life. The course of adulterous conduct must not be a matter of past, but must be continuing at the time of presentation of the petition. The stale alleged act of adultery is indicative of the fact that such act has been condoned and consequently, the allegation to the effect that the respondent no.1 was living in adulterous life way back in the year 2005 cannot be termed to be a circumstance, which may be significant enough to dispute the claim of the respondents to claim maintenance from the petitioner. This is also a significant circumstance which indicate that the proposed evidence is not essential to decide the controversy."

Referring the same, Learned Counsel submitted

that "living in adultery" means a continued adulterous conduct

and not a single or occasional lapse. Solitary act of adultery will

not disentitle the wife to claim the maintenance. But here in the

case before the Learned Court below, the OP husband could not

prove any charge of adultery or living in adultery against the

petitioner-wife. So, Learned Court below rightly decided the

claim petition of the petitioner granting maintenance in her

favour.

20. Similarly, in Suk Bir Chettri v. Jamuna Chettri

reported in 2019 SCC OnLine Sikk 185, Hon‟ble the High

Court of Sikkim in para 21 and 23 observed as under:

"21. In M.P Subramaniyam (supra), the Karnataka High Court was considering the term "living in adultery" appearing in clause (4) of Section 488 of Cr.P.C., 1898. It is to be noted that Section 125 (4) of the present Cr.P.C. also uses the very same expression. The Division Bench of the Karnataka High Court, relying on judgments of various High Courts, had observed that it is not a stray act or two of adultery that disentitles a wife from claiming maintenance from her husband; but

it is a course of continuous conduct on her part by which it can be called that she is living an adulterous life that takes away her right to claim maintenance. It was emphasized that the wording of Section 488 (4) of Cr.P.C. is not "if she commits adultery"

but "if she is living in adultery".

23. In Naranath Thazhakuniyil Sandha (supra), Kerala High Court, on consideration of various judgments referred to therein had held that phrase "living in adultery" used in Section 125 (4) of the present Cr.P.C. and in Section 488 (4) of the Cr.P.C. 1898 contemplates a continuous course of conduct on the part of the wife with the adulterer or the paramour, as the case may be, and a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming maintenance from her husband under Section 125 of the Cr.P.C."

Referring the same, Learned Counsel also

submitted the same fact that in absence of evidence of „living in

adultery‟, there is no scope to refuse any maintenance to the

petitioner and the Learned Court below considering everything

rightly granted maintenance in favour of the petitioner-wife.

21. Learned Counsel also relied upon another

judgment dated 10.02.2020 passed by a Single Bench of this

Court in Crl. Rev. P. No.73 of 2019 titled as Smt. Lipika Dey

(Saha) v. Sri Babul Kumar Saha, wherein Learned Single

Judge while deciding the matter discussed "living in adultery" at

page 5:

"Having appreciated the evidence as recorded and the finding on the basis of appreciation of such evidence, this Court does not find any evidence in respect of subsistence of marriage with someone else or the fact "to live in adultery". One act of adultery will not disentitle the wife from getting maintenance by importing the provision of Section 125(4) CrPC, inasmuch as the interpretation of the clause that has been engrafted in that section i.e. „living in adultery‟ cannot and does not mean one act of adultery.

On the contrary, it should be the continuous act of adultery. No such evidence is available on records to infer „living in

adultery‟. Moreover, prima facie materials are in abundance to show that the matrimonial life of the petitioner was seriously at stake for the conduct of the respondent. Even the respondent has categorically stated by adducing evidence that he would not take back the petitioner. Even he has not come forward with any proposal for maintenance."

Referring the same Learned Counsel for the

petitioner-wife also submitted that the OP husband failed to

prove the allegation of „living in adultery‟ against the petitioner

and in view of the principle, there is no scope to place any

reliance against the petitioner-wife to disentitle her claim of

maintenance.

22. In Pradeep Kumar Sharma v. Deepika

Sharma reported in 2022 SCC OnLine Del 1035, the High

Court of Delhi in para 27 also took the same plea. In Para 27,

the Hon‟ble High Court of Delhi observed as under:

"27. Hence, it is found that the law, as interpreted by the High Courts of the country, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC. In the instant matter, the petitioner before the learned Additional Principal Judge sought the non-payment of maintenance on the ground of adultery under Section 125(4) CrPC, however, the grounds taken by him did not establish even prima facie that the respondent was living in adultery. Even the statement by the son of the parties was made by after considerable amount of time of the trial had passed and the respondent had already been cross-examined. Therefore, the second ground of the petitioner also could not be established to contend that the respondent was not entitled to any maintenance."

Referring the same, Learned Counsel for the

petitioner-wife also submitted that the evidence on record of

the OP does not prima facie reveal that the petitioner-wife was

living in adultery. So the allegation as levelled by the OP needs

to be discarded and referring the same, Learned Counsel

submitted that Learned Court below rightly granted

maintenance in favour of the petitioner.

23. Now, regarding the charge-sheet of a case filed by

the OP relied upon by the OP husband against his wife and the

said Bikash Chakraborty, Learned Counsel further drawn the

attention of this Court that charge-sheet is not a public

document and it cannot be taken into evidence as the IO who

submitted charge-sheet was not tendered for examination by

the OP.

24. In para 37 of the judgment reported in (2009) 9

SCC 221 in Malay Kumar Ganguly v. Dr. Sukumar

Mukherjee and others, Hon‟ble the Apex Court observed as

under:

"37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken."

25. Further, Learned Counsel also relied upon another

citation of Saurav Das v. Union of India and others reported

in 2023 SCC onLine SC 58 wherein the Apex Court observed

in para 14 that the charge-sheet cannot be treated as a public

document within the definition of Section 74 of the Evidence

Act. So, since the charge in connection with Ranirbazar PS case

No.63 of 2019 as relied upon by the OP husband is not proved.

So, legally there is no scope to place any reliance upon the

charge-sheet and finally, Learned Counsel submitted that since

the OP himself admitted that he was earning more than

Rs.50,000/- per month so, considering the income of the OP

husband the maintenance awarded by the Learned Court should

be modified and it should be extended upto Rs.20,000/- and the

same should also be awarded from the date of application of

maintenance filed by the petitioner.

26. After hearing both the sides and also after going

through the evidence on record of the Learned Court below and

also after going through the principles of law laid down by the

Hon‟ble Apex Court and different High Court in the aforesaid

judgments, in my considered view Learned Court below rightly

decided the maintenance petition in favour of the petitioner of

this case.

27. In para 109 of the judgment of Rajnesh v. Neha

and another reported in (2021) 2 SCC 324, Hon‟ble the Apex

Court observed as under:

"109. The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded. Even though a judicial discretion is conferred upon the court to grant maintenance either form the date of application or from the date of the order in Section 125(2) CrPC, it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 CrPC. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that

maintenance is awarded from the date of the application."

From the aforesaid principle of law laid down by

the Hon‟ble Apex Court, it appears that maintenance allowance

should be granted from the date of application but here in the

case, Learned Court below awarded maintenance from the date

of December, 2022, ignoring the principles as laid down by the

Hon‟ble Apex Court in the aforesaid judgment.

28. Moreso, in my considered view, Learned

Court below committed serious error in deciding the quantum of

the maintenance fixing Rs.5,000/- per month, when the income

of the OP husband is more than Rs.50,000/-. In this regard, I

would like to rely upon one citation of the Hon‟ble Supreme

Court of India reported in (2017) 14 SCC 200 in Kalyan Dey

Chowdhury v. Rita Dey Chowdhury Nee Nandy where in

para 15, the Hon‟ble Apex Court observed as under:

"15. The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-2015 : 2016 SCC OnLine Cal 4972 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs 95,527. Following Kulbhushan Kumar v. Raj Kumari :(1970) 3 SCC 129, in this case, it was held that 25% of the husband‟s net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary

of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23,000 to Rs 20,000 per month as maintenance to the respondent wife and son."

From the aforesaid citation, it appears that 25%

of the husband‟s net salary would be just and proper to be

awarded as maintenance to the wife. But, in some other

judgments, that has been decided up to 30%.

However, since the son of the parties under

dispute is residing with the OP husband and the OP husband is

taking care of the entire expenses of the said son, who is a

growing child and pursuing studies so, in my considered view, if

maintenance allowance is awarded at the rate of Rs.12,000/-

per month then that would be a reasonable and rationale one

for the petitioner-wife to lead her livelihood and also it appears

that the petitioner has filed the petition before the Learned

Court below on 05.03.2020. So, following the aforesaid law laid

down by the Hon‟ble Supreme Court in Rajnesh (supra), in my

considered view, she should get the maintenance allowance

from the month of March, 2020 which Learned Court below

erred in allowing the same and allowed the maintenance from

the month of December, 2022.

29. In the result, the revision petition filed by the

petitioner is hereby allowed on contest. The Order dated

16.12.2022 passed by Learned Additional Judge, Family Court,

Agartala, West Tripura is hereby modified to the extent that the

OP husband shall pay maintenance allowance to the petitioner-

wife from the month of March, 2020 onwards at the rate of

Rs.12,000/- per month. At the same time, the revision petition

filed by the OP husband against his wife is thus stands

dismissed.

Since Learned Court below awarded maintenance

from the month of December, 2022 and at the time of hearing,

nothing was submitted by the petitioner as to whether the said

amount has been paid by the OP husband or not. So, the

maintenance allowance as ordered shall be paid by the OP

husband at the rate of Rs.12,000/- per month from the month

of March, 2020 to November, 2022 i.e. arrear amount and

thereafter as per judgment of the Learned Court below, if the

maintenance allowance is paid then the arrear maintenance

allowance also be paid from the December 2022 to till date

deducting the amount already paid. From the month of March,

2020 to November, 2022, the amount comes to Rs.3,96,000/-

and thereafter from the month of December 2022 to December

2023, the amount comes to Rs.1,56,000/-. Now, if the amount

of maintenance awarded earlier is already been paid till

December 2023, that amount should be deducted and the

balance amount at the rate of Rs.7000/- per month for a period

of one year shall be paid by the OP husband to the petitioner

and from the month of January 2024 onwards, the OP husband

shall pay maintenance at the rate of Rs.12,000/- per month to

the petitioner-wife on regular basis and the amount be sent

either by money order or by any other mode to the address of

the petitioner-wife by the OP husband within first week of the

next following month on which monthly maintenance allowance

becomes due to the petitioner-wife. The arrear maintenance

allowance which comes to Rs.5,52,000/- shall be paid by the OP

husband within a period of 36 months commencing from the

month of February, 2024, in addition to his monthly

maintenance allowance.

30. Send down the LCR along with a copy of the

judgment. A copy of this judgment and order be supplied free of

cost to the Learned Counsel for both the parties for information

and compliance. A copy of this judgment also be kept in

connected Crl. Rev. P. No.10 of 2023.

Pending application(s), if any, also stands

disposed of.

JUDGE

MOUMITA Digitally signed by MOUMITA DATTA

DATTA Date: 2024.01.29 13:15:22 -08'00' Deepshikha