Disposed

Ansarul Alam v. Nilofa Yashmin and Anr.

Gauhati HC2 Nov 2018Crl.Rev.P./141/2018

Case brief

AI extract

What is this about?

High Court disposed of a revision petition challenging maintenance award. Court held petitioner is not able to pay from father's assets and directed him to file application before Family Court for modification; petitioner must pay 75% of awarded amount pending decision.

What did the court decide?

Petitioner directed to pay 75% of awarded maintenance; Court directed to dispose of modification application within 45 days.

Ansarul Alam Vs Nilofa Yashmin and Anr. — Maintenance and Alimony | Gauhati HC (2018)

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Page No.# 1/2

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GAHC010095622018

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P. 141/2018

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1:ANSARUL ALAM

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S/O- SRI SAMSUL ALAM, R/O- HOWLY TOWN, WARD NO. 03, P.O AND P.SHOWLY, MOUZA- GHILAJARI, DIST- BARPETA, ASSAM, PIN- 781316

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VERSUS

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1:NILOFA YASHMIN AND ANR.

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D/O- NURUL ISLAM, R/O- HOWLY TOWN, WARD NO. 01, P.O AND P.SHOWLY, MOUZA- GHILJARI, DIST- BARPETA, ASSAM, PIN- 781316

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2:THE STATE OF ASSAM

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REP. BY THE PP, ASSA

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Advocate for the Petitioner : MR. I H LASKAR

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Advocate for the Respondent : PP, ASSAM R2

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BEFORE HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

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ORDER

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Date : 02-11-2018

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Heard Mr. P K Deka, learned counsel appearing for the petitioner, and Mr. H Talukdar, learned counsel for the respondent No.1.

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This revision petition has been filled, challenging the legality, propriety and correctness of the order, dated 15.02.2018, passed by the learned Principal Judge, Family Court, Barpeta in FC(Crl.) Case No. 159/2015, under Section 125 of the Cr.P.C., granting maintenance allowance @ Rs. 5,000/- per month to the respondent No.1.

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The learned counsel for the petitioner has submitted that Rs.5,000/-, as maintenance

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Page No.# 2/2

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allowance, per month, in the instant case, is in higher side considering the fact that the petitioner is a student and he has no income of his own.

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Mr. Talukdar, learned counsel for the respondent No.1, has submitted that inspite of the fact that the petitioner does not have any income of his own, yet he is an able bodied person. As per the settled position of law, he is bound to maintain his wife, i.e., the respondent No. 1, and therefore to pay bound maintenance allowance. But, considering the fact that he does not have any income of his own, the learned counsel for the petitioner has submitted that the amount of maintenance be reduced to Rs. 3000/-, to which Mr. Talukdar, learned counsel for the respondent No.1, vehemently objected.

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On perusal of paragraph 10 of the judgment of the learned trial Court, it appears that, the learned trial Court has specifically mentioned that the father of the petitioner has a jewellery shop; therefore, it was held that he belongs to a well to do family which, in the considered view of this Court, cannot be a good reason for assessing the financial capability of the petitioner.

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Therefore, this Court is of the view that the present petitioner shall approach the learned trial Court of Principal Judge, Family Court, Barpeta, with an appropriate application for modification/alteration of the maintenance allowance, granted to the respondent No. 1, which the learned Family Court will dispose of on its own merit taking into account the ability to pay maintenance by the petitioner on the basis of his income or otherwise be assessed. However, till such assessment is made and a decision is taken thereon, the petitioner shall continue to pay 75% of the maintenance allowance already granted by the learned Family Court, Barpeta, in accordance with the order, dated 11-05-2018, passed by this Court in this Criminal Revision Petition.

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The application to be made by the petitioner before the learned Family Court, Barpeta, shall be disposed of within 45 days from the date of filing of the application after hearing both sides.

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The Criminal Revision Petition is disposed of accordingly.

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JUDGE

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Comparing Assistant

Ansarul Alam v. Nilofa Yashmin and Anr.

Case brief

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Ansarul Alam v. Nilofa Yashmin and Anr.

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