Shri Narayan Deb vs Smt. Gopika Datta Chowdhury

Heard Learned Counsel, Ms. Ashmita Banik appearing on behalf of the petitioner-husband but none appeared on behalf of the respondent-wife today when the matter is taken up for hearing although on earlier occasion one counsel appeared and sought for adjournment.

This criminal revision petition under Section 19(4) of the Family Courts Act, 1984 read with Section 397 and 401 of Cr.P.C. corresponding to Section 438 and 442 of BNSS is filed challenging the judgment and order dated 29.05.2025 passed by Learned Addl Judge, Family Court, Agartala, West Tripura in connection with Misc. 638 of 2021. By the said judgment and order, Learned Addl. Judge, Family Court, West Tripura, Agartala has enhanced the amount of maintenance from Rs.3,500/- to Rs.9,500/- per month and directed the present petitioner-husband to pay the said amount w.e.f. the month of May, 2025 onwards.

Taking part in the hearing, Learned Counsel for the petitioner submitted that the marriage amongst the rival parties has been dissolved by a decree of divorce and practically, there is no marriage tie amongst them. Initially, an order for maintenance was passed for an amount of Rs.3,500/- and the petitioner-husband was paying the said amount but all on a sudden the Learned Trial Court without considering the financial condition of the petitioner-husband has enhanced the amount from Rs.3,500/- to Rs.9,500/- which compelled the petitioner-husband to file this petition.

Learned Counsel further submitted that for any reason the petitioner-husband could not adduce any witness before the Learned Trial Court and could cross-examine the witnesses of the respondent-wife. It was further submitted that the petitioner-husband has to pay Rs.25,000/- towards EMI of housing loan and after deduction of the said amount, if he has to pay Rs.9,500/- per month, in that case, nothing will remain in his hand for his survival and urged before this Court to allow this petition and to set aside the judgment passed by the Learned Judge, Family Court.

I have perused the judgment and order passed by the Learned Family Court.

Admittedly, before the Learned Trial Court the petitioner-husband neither cross-examined the witnesses of the petitioner nor adduced any evidence in support of his contention. Factually, there is very least scope to interfere with the order but at the same time, it is true that the order of maintenance was enhanced from Rs.3,500/- to Rs.9,500/- by the Learned Trial Judge and prior to that initially in another proceeding vide Misc. 77 of 2016, the then Learned Judge, Family Court awarded a sum of Rs. 6,500/- per month in favour of the respondent-wife. Thereafter, the present petitioner-husband challenged the same before this High Court and this High Court by an order in Crl. Rev. P. 22 of 2019 reduced the monthly maintenance amount from Rs. 6,500/- to Rs.3,500/-and after that, in the subsequent proceeding under Section 127 of Cr.P.C., the amount has been further increased from Rs. 3,500/- to Rs. 9,500/-.

It is the admitted position that the marriage of the petitioner has been dissolved by a decree of divorce in TS(Div)/80/2020 vide judgment and order dated 19.06.2024 and decree dated 02.07.2024. There is no evidence on record that after the divorce either of the parties have got married. As per Section 125 of Cr.P.C., there is no bar for a divorced wife to claim maintenance from her husband. Before the Learned Trial Judge, in the said proceeding [Misc. 638 of 2021] under Section 127 of Cr.P.C., the respondent-wife adduced three witnesses and as already stated, the present petitioner-husband neither cross-examined the said witnesses of the respondent-wife nor adduced any witnesses in support of his contention. Even no income certificate was produced from the side of the present petitioner-husband to draw any inference regarding his monthly income. However, in para No.12 of the said judgment and order, it was asserted that PW-1 i.e. the respondent-wife stated before the Learned Addl. Judge, Family Court that the monthly income of the petitioner-husband was not less than Rs.49,791/-. Thus, the Learned Trial Judge determined the net salary of the petitioner-husband to the extent of Rs.38,000/- and considered to deduct 25% i.e. 1/4^th net salary of the petitioner husband and accordingly, fixed the amount of maintenance at Rs.9,500/-in place of Rs. 3,500/-.

Since the present petitioner-husband failed to adduce any witness before the Learned Trial Court to substantiate his contention and could not cross-examine the witnesses of the respondent-wife, so, for the sake of justice, it appears to this Court that an opportunity be given to the present petitioner-husband to adduce witnesses in support of his case before the Learned Trial Judge and accordingly, the order dated 29.05.2025 in connection with Misc. 638 of 2021 delivered by Learned Addl. Judge, Family Court, Agartala is hereby interfered with and set aside. The matter be remanded back to the Learned Family Judge, Agartala, West Tripura to allow the petitioner-husband to adduce witness in support of his case and also to direct the respondent-wife being the petitioner of the said proceeding to adduce her witnesses including herself for cross-examination by the present petitioner-husband. The entire exercise shall be completed within a period of 05(five) months from the date of passing of this judgment and order. The petitioner-husband shall continue to pay the enhanced amount of maintenance till disposal of the petition [Misc. 638 of 2021] by the Learned Trial Court and if any further alteration is made, in that case, the amount shall be adjusted with the maintenance paid by the petitioner-husband.

It is further ordered that since the respondent-wife adduced her witnesses before the Learned Trial Court being a deserted lady, so, the petitioner-husband shall pay a cost of Rs.10,000/- to the respondent-wife which shall be deposited by the petitioner-husband before the Learned Judge, Family Court on or before 02.09.2026 and on that day, the petitioner-husband shall appear before the Learned Trial Court. After receipt of the payment, the Learned Trial Judge shall disburse the amount in favour of the respondent-wife acknowledging the proper receipt in the margin of the order sheet and shall proceed to dispose of the matter in accordance with law fixing dates. However, it is made clear that if the petitioner-husband again remains absent to cross-examine the witnesses of the wife and fails to adduce evidence in that case his further right and scope will be extinguished to produce the same later on to defend his case.

With this observation, the present petition stands disposed of.

A copy of this order be supplied to Learned Counsel for the petitioner.

Send down the record of Learned Family Court, West Tripura, Agartala along with a copy of the order/judgment.

Pending application(s), if any, also stands disposed of.