Tripura High Court
Sri Debabrata Das vs Smt. Soma Sarkar on 28 May, 2024
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev.P.No.11 Of 2024
Sri Debabrata Das
Son of Late Rabindra Das, aged 33 years,
Resident of village & PO-West Bhubanban,
P.S. West Agartala, Sub-Division-Agartala,
District- West Tripura.
..........Petitioner
Versus
1. Smt. Soma Sarkar,
Daughter of Sri Dhirendra Chandra Sarkar,
Resident of West Noabadi, Amtali,
P.S. Bodhjungnagar, Sub-Division- Agartala,
District- West Tripura.
2. The State of Tripura
.......Respondents
For Petitioner(s) : Mr. S. Lodh, Adv,
Mr. Subham Majumder, Adv.
For Respondent(s) : Mr. Raju Datta, P.P.
Date of Hearing : 22.05.2024
Date of delivery of
Judgment and Order : 28.05.2024
Whether fit for
Reporting : NO
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
Heard Learned Counsel Mr. S. Lodh assisted by
Learned Counsel, Mr. Subham Majumder, representing the
petitioner and also heard Learned P.P., Mr. Raju Datta,
representing the State-respondent. None appeared on behalf
of the respondent No.1.
02. This Criminal Revision is preferred challenging the
order dated 07.10.2023 passed in connection with case
No.Crl.Misc.(Int.)222 of 2022 arising out of Crl.Misc.221 of
2022 delivered by Learned Family Judge, Agartala, West
Tripura.
03. In course of hearing, Learned Counsel for the
petitioner submitted that the respondent-wife preferred one
maintenance case before the Learned Family Court which
was numbered as Crl.Misc.221 of 2022 and in the said case
another prayer was submitted for granting interim
maintenance and the same was numbered as
Crl.Misc.(Int.)222 of 2022, but the Learned Family Judge,
after hearing both the sides, at the time of passing order on
07.10.2023 allowed interim maintenance allowance to the
respondent-wife at the rate of Rs.5,000/- per month with
effect from 29.07.2022 i.e. from the date of filing of the case
and out of that amount Rs.3,000/- was awarded for the wife-
respondent and Rs.2,000/- for the minor daughter.
04. In this regard, Learned Counsel submitted that in
the petition preferred by the respondent-wife, there was no
claim for the alleged minor daughter by the respondent-wife,
but unfortunately, the Learned Court below at the time of
order also awarded maintenance in her favour. Learned
Counsel further submitted that before the Learned Court the
petitioner-husband did not admit his marriage with the
respondent-wife and furthermore, that alleged minor
daughter is not the offspring of the parties involved in the
proceeding rather it was the daughter of one Rakesh
Debnath i.e. the first husband of respondent-wife with whom
she got married on 17.02.2006 and during their wedlock,
that minor daughter, Rudra Priya Debnath was begotten on
20.10.2011, who is presently aged about 10 years old.
05. So, accordingly to Learned Counsel, since the
petitioner-husband has denied his marriage with the
respondent-wife and the paternity of the minor daughter, so,
Learned Court below without application of proper mind has
passed the order, which is liable to be interfered with
henceforth. He also referred the petition submitted by the
respondent-wife before the Learned Family Court for
granting interim maintenance and also the written objection
submitted by the present petitioner-husband in the said
proceeding.
06. Learned Counsel further submitted that nowhere
in the said written objection it was admitted by the
petitioner-husband that he got married with the respondent-
wife rather he stated that he had some love affair with the
respondent-wife but ignoring the said fact, Learned Court
below has passed the order which is totally unwarranted in
the eye of law. The notice of the Revision Petition was served
upon the respondent-wife, but inspite of receipt of notice,
she did not turn up, so, the Court took up the matter for
hearing.
07. In course of hearing, Learned P.P. for the State-
respondent submitted that he has no role in this matter and
urged for disposal of this petition on merit.
08. I have perused the application filed by the
petitioner as also the written objection filed by the
petitioner-husband before the Learned Family Court. Since,
the matter was interim in nature, so, without taking any
evidence on record, the Learned Court below disposed of the
same interim application by order dated 07.10.2023.
09. From the petition submitted by the respondent-
wife before the Learned Family Court, it appears that in her
application, she stated that her marriage earlier took place
on 17.02.2006 with one Rakesh Debnath and out of their
wedlock one female issue, namely, one Rudra Priya Debnath
was born on 20.10.2011, who is presently 10 years old and
residing with her mother. Thereafter, on 14.07.2015 said
Rakesh Debnath expired and according to the respondent-
wife, after that she got married to the petitioner-husband on
28.07.2021 according to customs and after that, some
dispute cropped up, for which she filed a case against the
present petitioner under Section 498(A) of IPC which is
pending for investigation and it was also submitted that the
petitioner-husband is a Government Employee under Fire
Service Department and his monthly salary was Rs.40,000/-.
Hence, she prayed for interim maintenance of Rs.10,000/-.
10. The petitioner-husband as O.P. in the said
proceeding contested the same denying his marriage with
the respondent-wife rather he admitted that he had some
love affair with the respondent-wife and after some period,
he could know that the respondent-wife was a married
woman and also had got a child. So, for making false
statement he discontinued the relationship with the
respondent-wife and for that the respondent-wife started
blackmailing him and finally, she filed the case and he also
denied all the allegations, levelled by the respondent-wife
against him in the claim-petitioner including physical and
mental torture and by the written objection, ultimately, he
prayed for dismissal of the proceeding.
11. Learned Court below, after hearing both the sides
awarded maintenance allowance of Rs.5,000/- per month
with effect from 29.07.2022 and out of that amount
Rs.3,000/- was awarded for the respondent-wife and
Rs.2,000/- was awarded for the minor-daughter.
12. At the time of passing of the order, Learned
Family Court relied with the following citation of our Hon'ble
Apex Court in Chanmuniya Vs. Chanmuniya Virendra
Kumar Singh Kushwaha and Ant. reported in (2011) 1
SCC 141 and came to an observation that a man who lived
with a woman for a long time and even though they may not
have undergone legal necessitates of a valid marriage,
should be made liable to pay the woman maintenance if he
deserts her.
"Also the Hon'ble Supreme Court of India
in its landmark judgment in the case of D.
Velusamy Vs. D. Patchaiammal, reported in
(2010) 10 SCC 469, recognized that a long
term live-in relationship could be
considered a valid marriage under certain
circumstances. In this case Court laid
certain criteria to determine whether a
relationship between two adults, who are
not married, qualifies as a "relationship in
the nature of marriage" and is within the
ambit of domestic relationship under the
Protection of Women from Domestic
Violence Act, 2005. Also live-in relationship
is not immoral or illegal {S.Shushboo V.
Kanniammal & Anr (2010) 5 SCC 600}. The
Court also held that women in live-in
relationships are entitled to maintenance
from their partners after separation.
Subsequently in 2015, it has further
expanded the rights of partners in live-in
relationships are entitled to maintenance
from their partners after separation.
Subsequently in 2015,it has further
expanded the rights of partners in live-in
relationships in the case of Indra Sarma Vs.
V.K.V. Sarma reported in (2013) 15 SCC
775 the Court held that women in long-
term live-in relationships were entitled to
maintenance from their partners after
separation. The court also held that a
woman in a live-in relationship is entitled
to maintenance if the man deserts her or
refuses to maintain her. Similarly, in the
case of D.Velusamy Vs. D.Pathaiammal, the
Apex Court also held that a live-in
relationship can be presumed to be a valid
marriage if the couple has lived together
for a long time and there is evidence to
show that they have held themselves out to
society as being akin to spouses."
"Section 125 Cr.P.C., is enacted for social
justice and specifically to protect women
and children as also old and infirm poor
parents within the constitution sweep of
Art.15(3) reinforced by Art.39 of the
Constitution. The provision gives effect to
the natural and fundamental duty of a man
to maintain his wife, children and parents
so long they are unable to maintain
themselves-Savitaben v State (2005) 3 SCC
636. Interim maintenance pending final
disposal can be granted. The Magistrate
may, however, insist upon an affidavit from
the application stating the grounds in
support of the claim of interim maintenance
to satisfy himself that there is prima facie
case for making such an order Of Course in
an appropriate case an interim order for
maintenance can be passed ex parte even
before service of Notice upon the opposite
party. Such an order is subject to
modification or even cancellation if after
hearing the opposite party if the allegations
in the application or the affidavit are found
not true. It is always open to the person
against whom such an order is made to
show that the order is unsustainable - AIR
1989 SC 987 (Hon'ble Supreme Court
ruling).
Factors to be considered for
grant of maintenance- the Hon'ble Supreme
Court in the case of Ruby @ Pritipadma
Pradhan v Debasish Pradhan 2014(ii) ILR
CUT 709, after taking note of its various
decisions has held:
"Thus, after considering the above position
of law, it is evident that the following
principles emerge from the judgments
available in the field:
(a) Maintenance depends upon
the summation of all the facts of the
situation involved in the particular case.
(b) For granting maintenance,
the scale and mode of living, the age,
habits, wants and class of the life of the
parties has to be regarded.
(C) Maintenance being such that
the wife could live in reasonable comfort;
considering her status and mode Of life
which she was used to while living with her
husband.
(d) During the pendency of the
suit for maintenance/ which may take a
considerable time to attain finality, the
Wife cannot be forced to face starvation till
she is subsequently granted maintenance
from the date of the filing of the suit.
(e) Maintenance must
necessarily encompass a provision for
presidence. Maintenance is given so that
the lady can live in the manner, more or
less, to which she was accustomed.
(f) Maintenance, necessarily
must encompass a provision for residence.
Maintenance is given so that the lady can
live in the manner, more or less, to which
she was accustomed. The concept of
maintenance must, therefore, include
provision for food and clothing and the like
and take into account the basic need of a
roof over the head.
(g) Maintenance must vary
according to the position and status of a
person. It does not only mean food and
raiment.
(h) It is also seen that the
amount fixed cannot be excessive of
affecting the living condition of the other
party."
13. Here in the case at hand, it is the admitted
position that the petitioner-husband is a Government
Employee serving in the Fire Service Department and draws
Rs.40,000/- per month as salary and he is according to
respondent-wife, was not paying any maintenance to her.
Even, the petitioner-husband inspite of receiving notice did
not take part in the hearing.
14. So, Learned Court by the said order has disposed
of interim application. So, after hearing Learning Counsel for
the present petitioner-husband and after going through the
relevant documents of the Learned Trial Court below, it
appears that the main case is still pending for adjudication.
It is not known to the Court that what would be the outcome
of the main proceeding before the Learned Court below.
However, it appears that, in the petition the respondent-wife
did not submit anything in respect of the minor daughter but
at the time of passing order, Learned Court below also
granted maintenance in her favour, who is also not the
biological daughter of the petitioner-husband, which in my
considered view that Learned Court below has committed
error in this regard.
15. So, considering the facts and circumstances of the
case, it appears that the order passed by the Learned Court
below needs to be modified. Since, the subject matter of
their dispute is still pending in the Learned Family Court and
we are dealing with the interim application, so, till disposal of
the main application, the petitioner-husband shall continue
to pay Rs.3,000/- to the respondent-wife in place of
Rs.5,000/- with effect from 29.08.2022.
16. In the result, the Revision Petition filed by the
petitioner-husband is partly allowed. The order dated
07.10.2023 in connection with case No.Crl.Misc.(Int.) 222 of
2022 is partly modified to the extent that the petitioner-
husband, Debabrata Das shall pay Rs.3,000/- per month, if
not paid, to the respondent-wife Smt. Soma Sarkar with
effect from 29.07.2022 to till disposal of the main proceeding
before the Learned Court below i.e. the case
No.Crl.Misc.No.221 of 2022. With this observation, this
Revision Petition is disposed of.
Send down the LCR along with a copy of this
judgment/order.
Pending application(s), if any, also stands
disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.05.29 17:49:38
+05'30'
Purnita
