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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

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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.

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Judgement reviewed byu: Sowmya.R

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SC Affirms Summoning of Wife in ‘Cheating’ Complaint by Husband: Prima Facie Case Established

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Case title: Aniruddha Khanwalkar v. Sharmila Das and Ors.

Case no: Criminal appeal no of 2024 (arising out of SLP. (CRL.) No. 10746 of 2023)

Dated on: April 26th ,2024

Quorum: Justice Rajesh Bhindal

Facts of the case:
The appellant’s marriage was officiated with the respondent no.1 on 28.04.2018 in the presence of the respondents no.2 and no.3. The appellant on that date realized that the respondent was already married and had not obtained divorce from her first husband. The appellant then filed a petition under Section 11 of the 1955 Act (The Hindu Marriage Act), to seek nullification of marriage between the appellant and the respondent no.1. The appellant then filed a case against the respondents no. 1,2, and 3 to the magistrate. The magistrate then booked the respondent no.1 under Section 494 and 420 and, against the respondents no.2 and 3 under Section 420 read with section 120-B , IPC. The above order was then challenged by the respondents no.1 to 3 by filing a revision petition. On 16.06.2018, when Respondent no.1 visited the doctor for a checkup, she was found to be pregnant and wanted to undergo an abortion, but when confronted by the appellant, the Respondent informed that she has not yet obtained divorce from her previous marriage. It was revealed then the document shown to the Appellant was forged which revealed that the consent for marriage was obtained dishonestly. The Appellant felt cheated and then filed a written complaint to the Superintendent of Police on 07.07.2018 and then to the Station in-Charge, on 08.07.2018. However, as no action was taken, a complaint was filed in the court before the Magistrate on 20.07.2018. The Trial Court after recording the preliminary evidence summoned the Respondent no.1 to face trial under Sections 494 and 420 read with Section 120-B, IPC and the respondent nos.2 and 3 to face trial under Section 420 read with Section 120-B, IPC. The aforesaid order was challenged by the respondents before the Additional Sessions Judge. The Sessions Court held that no offence punishable under Section 420 read with Section 120-B, IPC was made out as the factum of earlier marriage of the Respondent no.1 was clearly disclosed to the Appellant. The said Order was challenged by the Appellant before the High Court, which was in turn dismissed by the High Court without assigning any reasons.
Contentions of the appellant:
The appellant contended that the Court failed to appreciate the facts of the case. A prima facie case has been made out which shows that the Appellant has been dishonestly induced by Respondents number 1, 2 and 3 in believing that the Respondent no. 1 had obtained divorce, by showing a forged order, knowing very well that the marriage had not yet been dissolved as on the date of marriage with the Appellant and therefore the Order is liable to be set aside. The Respondents are therefore liable to face trial under Section 420 read with Section 120-B, IPC for the reason that they had conspired with each other and dishonestly induced the Appellant into marrying Respondent no.1 and parting with huge expenses towards fare for travel from Vishakapatanam to Gwalior and vice versa along with expenditure to be incurred for the marriage.

Contentions of the respondent:
On the basis of the pleaded facts and the material produced by the Appellant before the Magistrate, no offence under Section 420, IPC could be made out. The Appellant could not make any case of criminal conspiracy and offence of cheating against the Respondents. There is no error in the orders passed by the Sessions Court or the High Court. There was no concealment or cheating as the Respondents had clearly disclosed all the facts to the Appellant before marriage and hence the appeal deserves to be dismissed.

Issues:
Whether the High court and the trial court was right in setting aside the summoning order passed by the trial court?

Legal provisions:
Sections 494 IPC- Punishment for bigamy.

Section 420 IPC-Punishment for cheating.

Section 120-B, IPC-Punishment for criminal conspiracy.

Courts judgement and analysis:
The Sessions Judge failed to appreciate the fact that certain events had taken place such as apprising the appellant about the decree of divorce having been passed and showing the forged copy of the same on mobile. The Learned Sessions Court has considered the revision against the summoning order as if, after trial, the findings of conviction/ acquittal was to be recorded. The matter was only at a preliminary stage of summoning and for summoning an accused, prima facie case needs to be made out on the basis of allegations and the pre-summoning evidence given by the Complainant. The High Court, further, has dismissed the petition without recording any reasons. The Learned Sessions Court and the High Court Order in setting aside the summoning order against the accused persons is not legally sustainable. On the basis of the facts pleaded and evidence adduced by the Appellant, prima facie case is made out for issuing process against the respondents to face trial for the offence punishable under Section 420 read with Section 120-B, IPC, for which they were summoned. The appeal is accordingly allowed. The impugned orders passed by the High Court and the Sessions Court are thus set aside and that of the Magistrate is restored.

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Judgement reviewed by- Parvathy P.V.

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