Hatem Ali Mollah vs Ayesha Siddika

[1] Heard Mr. M.I. Hussain, the learned counsel for the revisionist. Also heard Mr. A.T. Sarkar, the learned counsel for the opposite party.

[2] This criminal revision petition is directed against the impugned judgment dated 17.08.2024, passed by the learned Principal Judge, Family Court, Dhubri in F.C. Crl. Case No. 173/2023, whereby the learned court below awarded an amount of Rs. 8000/- per month as maintenance with effect from the date of filing of the application under Section 125 of the Code of Criminal Procedure, 1973, to be paid by the present Revisionist / OP to the present respondent / Revisionist.

[3] The facts of the case may be briefly discussed:-

[4] The respondent/wife herein as 1^st Party/petitioner instituted the proceeding under Section 125 of the Code of Criminal Procedure, 1973 before the learned Family Court, Dhubri against the Revisionist husband/opposite party therein.

[5] The case of the respondent/wife, in brief, is that her marriage with the Revisionist/opposite party was solemnized on 28.02.2022 by executing a kabin-nama as per Mohammedan Law and after the marriage, they started leading conjugal life at the matrimonial home. But just after one month of the marriage, the petitioner was subjected to physical and mental torture by the opposite party at the ill-advice of his family members. The opposite party had demanded one part of the residential building of the petitioner wife’s father situated at Gauripur Ward No.12 along with cash amount of Rs. 5 lakh. However, the parents of the wife could not fulfil the aforesaid demand of the opposite party. The petitioner wife’s was driven out from her matrimonial home several times and on each occasion the Village elders brought her back to her matrimonial home. Due to the torture on the petitioner wife’s, she instituted a case against the opposite party, being C.R.(D/V) Case No.355/2023 before J.M.F.C., Dhubri. But ultimately on 02.07.2023, the petitioner wife’s was driven out from her matrimonial home by the opposite party. The petitioner wife’s having no alternative had to take shelter in her parental home and since then she has been residing there. During this period, the opposite party/ Revisionist did not take any effort to bring the petitioner wife’s back to resume conjugal life though she was eagerly waiting. The opposite party/ Revisionist is serving as constable at 7^th A.P. Battalion and also own landed property and from all sources his monthly income is about Rs. 50,000/, whereas, the petitioner wife’s does not have any income of her own/any means to support, as such she is unable to maintain herself. The opposite party/ Revisionist having sufficient means, has failed to provide any maintenance to the petitioner wife’s since after driving her out from her matrimonial home till date for which the petitioner is facing great financial hardship. Hence, she sought an amount of Rs.20, 000/- as monthly maintenance allowance for herself.

[6] After service of the summons, the opposite party appeared in and filed written statement denying all the allegations against him. Rather, the petitioner wife’s being instigated by others used to pressurize the opposite party/ Revisionist to stay as Gharjamai at her parental home and on being refused, the petitioner wife’s became aggressive towards the opposite party/ Revisionist and his family members and started to treat them with cruelty. The petitioner wife’s even engaged her relatives to threaten the opposite party with dire consequences in order to make him to stay as gharjamai. On 02.07.2023, the petitioner wife’s in conspiracy with her relatives stole some money and gold ornaments from the house of the opposite party, taking advantage of his absence. On hearing the news, the opposite party requested the petitioner wife’s and her said relatives to return back the aforesaid money and ornaments, but instead of returning the same, the petitioner and her parents in order to misappropriate the stolen money, filed a false case under D.V. Act against the opposite party and his family members. The opposite party being an Assam Police Constable is getting salary of Rs.34,497/-, out of which he has to pay @ Rs.18,013/- per month towards the loan taken by him from SBI. Besides that, he has to maintain his old ailing mother, who is suffering from critical disease and a huge amount of money has to be spent for her treatment. The petitioner wife’s has been residing in her parental home at her own will. The opposite party/Revisionist took several steps to bring the petitioner wife’s in her matrimonial home, but failed due to denial by her. However, he is still ready to accept the petitioner wife’s and to lead conjugal life with her.

[7] The parties were referred to mediation which proved unsuccessful. The respondent/wife adduced her own evidence as PW-1, but the Revisionist/OP failed to cross examine the PW-1.

[8] The Revisionist / opposite party also examined himself as DW-1 and had also filed the evidence-on-affidavit of another witness, but only DW-1 could be cross examined and the evidence of DW-2 stood expunged as the Revisionist failed to produce him for cross examination.

[9] The learned court below on an appreciation of the evidence on record found that the respondent/wife had established her case by adducing evidence which stood unrebutted as the Revisionist /OP failed to cross examine her. Furthermore, it also came to the finding that the stand of the Revisionist/OP husband that he never tortured or drove her out and it was the wife, who insisted that he should stay as gharjamai in her parental home and that she fled from her matrimonial home by stealing money and gold ornaments therefrom stood unsubstantiated in as much as the Revisionist/OP failed to initiate any proceedings against the petitioner in that respect and rather it was the wife, who instituted a case against the husband under the Protection of Women from Domestic Violence Act, 2005 which is pending for adjudication and although the parties are staying separately since 02.07.2023, there is no material to show that the opposite party made any attempt or effort to bring back the petitioner to resume conjugal life with her.

[10] On appraisal of the evidence on record, it cannot be said that there was any such infirmity in the appreciation of the evidence on record by the learned court below.

[11] It is the contention of learned counsel for the Revisionist and that during the course of the mediation proceedings effort was made for reconciliation but due to the obdurate stand of the respondent wife the matter could not be settled.

[12] In this regard the learned counsel for the Revisionist has referred to an order passed by the Counselor, Family Court, Dhubri dated 15.12.2023, wherein it has been recorded that on being asked the petitioner wife’s agreed to continue her conjugal life with the opposite party on the condition that the opposite party, namely, Hatem Ali Mollah will either have to live separately in a rented house or in the house of the petitioner wife’s to which the opposite party/ Revisionist disagreed.

[13] The learned counsel for the Revisionist would submit that this itself shows that the Revisionist husband was always willing to take back his wife, but it was the aforesaid stand of wife which prevented such resumption of conjugal life.

[14] Upon appraisal of the evidence on record, it is quite clear that the aforesaid order of the counselor Family Court, Dhubri dated 15.12.2023 was never exhibited in evidence by the Revisionist/OP and in the absence thereof there was no occasion for the learned Family Court to consider the same. Moreover, the aforesaid order of the counselor Family Court does not become evidence by itself and consequently proof of the aforesaid fact unless the same is introduced into the evidence and the petitioner/respondent herein had an opportunity to assail the same. Therefore, otherwise also the aforesaid order of the counselor Family Court could not have been taken into consideration by the learned Family Court.

[15] Moreover, the Revisionist/OP husband failed to cross-examine the wife/PW-1 and, therefore, her evidence remained unchallenged and no error appears to have been committed by the learned Family Court in relying upon the same.

[16] As far as the quantum of maintenance is concerned, the petitioner is in government service as a Police Constable and at the relevant time the net monthly salary of the Revisionist husband was Rs. 34497/- and in course of hearing it is not disputed that at present his monthly salary would be in and around Rs. 50,000/- per month. It is also not disputed that the wife has no source of income and is dependent on her father for sustenance. Although the Revisionist / OP had set up a plea of deduction of Rs. 18,000/- towards repayment of some loan amount, the learned Family Court rightly held that no document has been brought on record in support of the same and moreover, the same appears to be for his personal benefit and, therefore, cannot be taken into consideration.

[17] In any view of the matter, the petitioner husband is bound to maintain his wife and at present while he is enjoying a salary of around Rs. 50,000/- per month, it cannot be contended that an amount of Rs. 8,000/- per month out of that is inappropriate or exorbitant.

[18] In view of the above, I find no merit in the instant revision which, accordingly, stands dismissed.