Gauhati High Court: mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125
CASE TITTLE: MAHIM ALI V THE STATE OF ASSAM AND ANR
CASE NO: Crl.Rev.P./465/2022
ORDER ON: 30.05.2024
QUORUM: . JUSTICE MALASRI NANDI
FACTS OF THE CASE:
The petitioner has preferred this application u/s 397/401 read with section 482 Cr.PC against the impugned Judgment and order dated 20/05/2022 passed by the learned Principal Judge, Family Court, Nalbari
The facts leading to the present petition is that, On 06/09/2019, the respondent no. 2 has filed a case u/s 125 Cr.PC before the learned Principal Judge, Family court, Nalbari alleging inter alia that she got married to the petitioner, After their marriage, they led their conjugal life for a very short period as the petitioner started to torture her both physically as well as mentally and the respondent/wife was compelled to leave her matrimonial home and took shelter in the house of her parents. As such the respondent No. 2 claimed maintenance u/s 125 Cr.PC. . On receipt of the notice, the petitioner appeared before the trial court and contested the case by filing written statement denying the allegations leveled against him. During trial, the respondent no. 2 adduced evidence as PW-1, her father as PW-2, and her uncle as PW-3. The petitioner also examined himself as DW-1 and one Rahman Mulla as DW-2. After hearing the learned counsel for the parties, the trial court has allowed the maintenance allowance in favour of the respondent No. 2 and directed the petitioner to pay a monthly maintenance amounting to Rs. 2200/- to the respondent No. 2 from the date of Judgment.. Being highly aggrieved and dissatisfied with the Judgment and Order as aforesaid, the petitioner has preferred this Revision Petition.
LEGAL ISSUES:
Whether the respondent is entitled for maintenance from the petitioner?
Whether the findings recorded by the trial court are perverse, warranting interference by this court.
LEGAL PROVISIONS:
Section 125 CRPC talks about maintainance.
Section 401 CrPC deals with the revisional jurisdiction of the High Court
Section 397 CrPC states that both the High Court and the Sessions Court have the concurrent power to call for and examine the records of the lower court proceedings
section 482 Cr.PC allows the exercise of inherent powers by the High Court for securing the ends of justice or for the prevention of abuse of the process of any court.
CONTENTIONS OF PETITIONER:
The Petitioner through their counsel submitted that the learned trial court has failed to appreciate the materials on record as well as the written statement filed by the petitioner and evidence of DW-1 and DW-2.the counsel further submitted that, It is clearly stated in his written statement that the respondent no. 2 frequently fled away from her matrimonial home, She is a disobedient lady, never showed any intention to lead peaceful conjugal life with the petitioner and as such, the Page No.# 3/7 Judgment and Order is liable to be set aside. the counsel further submitted that the petitioner is a daily wage earner, earning about Rs. 2500/- to 3000/- per month. The petitioner is having an old aged mother who is totally dependent on the petitioner. Under such backdrop, awarding a maintenance of Rs. 2200/- per month is absolutely unjustified. ,
CONTENTIONS OF THE RESPONDENT:
The counsel for the respondent No.2 submitted that the findings recorded by the trial court has supported by oral and documentary evidence, more so legally admissible evidence.the counsel further submitted that it is not a fit case to quash the impugned judgment and order passed by the trial court by exercising the revisional power of this court.
COURTS ANALYSIS AND JUDGEMENT:
The court on hearing the parties observed that, if the husband willfully and intentionally neglects to provide maintenance to his wife then she can approach before the court seeking maintenance. At the same time, wife is not entitled to claim maintenance from her husband if she left the matrimonial house without any justifiable cause. As per testimony of PW-1 i.e. the respondent No.2, the petitioner and his family members subjected her to cruelty and hence, she left her matrimonial home. The other witnesses examined by the respondent i.e. PW-2, her father and PW-3, her uncle also supported the statement of the respondent by stating that after few days of marriage of the respondent with the petitioner, the petitioner started to torture her both mentally as well as physically. The petitioner also asked her to bring money from her parental home. As the parents of the respondent are poor, they did not meet the demand of the petitioner and as a result of which, the respondent was compelled to leave the house of her husband and took shelter in the house of her parents. The court further observed that, Though the petitioner examined one witness in support of his case but he also alleged against the respondent in the same tune whatever stated by the petitioner in his statement that the respondent could not adjust herself in her in-laws house due to her bad nature and conduct. She always insisted her husband to live separately from her in-laws. The petitioner also alleged that the respondent has not followed the procedure as contemplated under the Mohammaden law.the court After going through the evidence of the witnesses as well as the provision of law under Section 125 CrPC, it is clear that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain his wife. Sometimes a plea is advanced by the husband that he does not have means to pay as he does not have a suitable job or business. But these are all bald excuses and in fact they have no acceptability in law. If the husband is healthy, able bodied and in a position to support himself, he is under the legal obligation to support his wife, .further the court observed that the Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.the court further is of the considered view that the learned trial court has scrutinized the material available in record in right perspective and the said findings are based on some reasoning and hence, interference by this court under Sections 401/397/482 CrPC is unwarranted. The court further dismissed the revision petition on devoid of being meritless.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Judgement reviewed byu: Sowmya.R