Indreswar Bhuyan vs Indu Bhuyan

Heard Mr. A.K. Gupta, learned counsel for the petitioner as well as Ms. M. Buzarbaruah, learned Legal Aid Counsel, appearing for and on behalf

of the respondent No.2.

By way of this application u/s.482 CrPC, the petitioner has challenged the order dated 18.06.2018, passed by the learned Sessions Judge, Dibrugarh

in Criminal Appeal No.8(1)/18, dismissing the appeal and upholding the order dated 27.12.2017, passed by the learned CJM, Dibrugarh, dismissing the

petition No.4711/2013, in C.R. Case No.430C/2008.

The factual narration of the case is that the respondent wife filed a complaint u/s.12 read with Section 18â€"20 and 22 of the Protection of Women

from Domestic Violence Act, 2005 before the learned CJM, Dibrugarh, praying for various reliefs under the aforesaid provisions which was registered

as C.R. Case No.430C/2008 and the said case was also contested by the present petitioner by filing written statement etc. and evidence was also

adduced by both the parties. The learned trial Court, by its order dated 16.11.2009, has directed the present petitioner to pay a sum of Rs.15,000/-per

month as well as Rs.4,000/- per month for the rented premises of the respondent wife. The appeal preferred against the aforesaid order was

dismissed with a direction to the petitioner to comply with the order of the trial Court vide order dated 02.06.2010, in Criminal Appeal No.38(4)/2009.

Thereafter the present petitioner filed a petition before the trial Court as on 17.08.2013 contending inter alia that the respondent wife is no more

entitled to get any amount for rental as she has now occupied a Government provided house under the Indira Awash Yojana (in short ‘the IAY

scheme’). The wife (respondent herein) filed her written statement denying the aforesaid contention.

The learned trial Court however did not register any separate Misc. Case and by its order dated 27.12.2017, passed an order directing the petitioner

to provide the rental that was directed by the trial Court as he failed to prove the contention raised in his petition. The aforesaid order was again

challenged by way of Appeal by the present petitioner vide Criminal Appeal No.8(1)/18, on the allegation inter alia that the learned trial Court has

failed to appreciate the fact that the respondent wife is residing in a housed provided under the IAY scheme, despite the evidence adduced by the

petitioner and dismissed the said appeal.

Now the present petition has been preferred against the aforesaid order dated 16.08.2019, passed by the appellate Court, submitting inter alia that

the learned appellate Court has not appreciated the fact that the petitioner herein has adduced his evidence as well as the concerned Gaonburha also

that his wife/respondent is residing in the allotted house of the Government, under the IAY scheme, which has occasioned failure of justice and as

such the aforesaid order is liable to be quashed and set aside.

I have heard the submission of learned counsel for the petitioner as well as the learned counsel for the respondent and also gone through the

impugned order passed by the learned Appellate Court as well as the learned Trial Court.

So far as the claim of the petitioner is concerned, he tried to prove that he is not require to pay the rental amount of Rs.4,000/- to the respondent

wife, as she has been residing in the house allotted by the Government under the IAY scheme, as mentioned above. He was also given the opportunity

to adduce evidence in support of his contention and accordingly he examined himself and other three witnesses including the concerned Gaonburha.

The said witnesses except acceding to the facts, has failed to prove any document to show that such and such house was allotted to the petitioner

under the IAY scheme. In their cross-examination, they have also fairly admitted that they have not submitted any document/notification etc. of the

Government regarding allotment of such house under the scheme, as alleged. The learned Appellate Court refused to accept such evidence to hold

that that the respondent wife is residing in the house allotted under the IAY scheme.

In fact, the petitioner as well as his witnesses totally failed to prove by documentary evidence that at what point of time such house was allotted to

the petitioner and when she occupied the same. Such a vague allegation without there being any documentary proof cannot be accepted, that such

houses are allotted by executing all necessary documents and only a certificate by the concerned Gaonburha is not enough to prove the same. That

being so, the findings of the appellate Court that no such reliance can be placed upon the certificate issued by the concerned Gaonburha to prove the

factum appears to be proper.

Having regard to the submission so made and after going through the materials on record including the evidence of the petitioner before the learned

trial Court, it remains nothing to this Court to hold that the learned appellate Court has committed any error in such findings.

Resultantly, this Court is not inclined to interfere with the order so passed by the learned appellate Court, by invoking the extra ordinary power

u/s.482 of the CrPC, in the given facts and circumstance of the case. The present petition stands dismissed accordingly.

The petitioner is directed to abide by the order of the trial Court and deposit the accumulated arrear before the trial Court, on the next date so

fixed and the learned trial Court will take appropriate action accordingly.

This Court appreciate the assistance rendered by Ms. M. Buzarbaruah, learned Legal Aid Counsel while conducting the case and the Assam State

Legal Services Authority is hereby directed to provide her remuneration, as per entitlement.