Dismissed

Boby Sahu @ Sanjib v. Tara Devi

Gauhati HC11 Feb 2020Crl.Pet./190/2018

Case brief

AI extract

What is this about?

Criminal petition challenging enhancement of maintenance award. Court held that actual entitlement to respondent is Rs. 1,000/month after division, which is not excessive. Application dismissed.

What did the court decide?

Criminal petition dismissed with observation that respondent can seek remedy for non-payment of arrears under appropriate provisions of law.

Boby Sahu @ Sanjib Vs Tara Devi — Maintenance and Alimony | Gauhati HC (2020)

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GAHC010043752018

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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.Pet. 190/2018

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1:BOBY SAHU @ SANJIB

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S/O- LATE DURGA SAHU, R/O- BALIJAN, P.O- BALIJAN, P.S- GOHPUR, PIN784172, DIST- BISWANATH, ASSAM

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VERSUS

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1:TARA DEVI

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W/O- SRI BOBY SAHU @ SANJIB, R/O- BALIJAN, P.O- MADHYA CHATRANG, P.S- GOHPUR, PIN- 784168, DIST- BISWANATH, ASSAM

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Advocate for the Petitioner : MR. R P HAZARIKA

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Advocate for the Respondent : MS P BARMAN

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 11.02.2020

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Heard Mr. R.P. Hazarika, learned counsel for the petitioner and Mrs. P. Barman, learned Legal Aid Counsel appearing for the respondent.

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Challenging the order dated 21.02.2018 passed by the learned Sub-Divisional Judicial Magistrate, Gohpur in Misc. Case No. 21/2016 by which maintenance amount payable by the petitioner to the respondent was enhanced to Rs.3,000/- per month, the present application under Section 482 Cr. P.C. has been filed by the petitioner, who is the estranged husband of the respondent herein.

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The learned counsel for the petitioner has submitted that in the impugned order, the learned trial court did not give any finding as to the income of the petitioner and without the proof of income of the petitioner being on record, the maintenance was awarded @ Rs.3,000/- per month, notwithstanding the claim made by the petitioner that he is an undermatriculate and having no source of income at all. It is submitted that the maintenance was fixed on the basis of surmises and conjunctures and without taking into account the allegations made by the petitioner against the respondent. It is further submitted that the petitioner is dependent on the common income of the family and that his family is consisting of his aged mother, two unsound brothers and sisters and unmarried elder brother, who are all dependent on the petitioner. Under such circumstances, it is submitted that the maintenance amount of Rs.3,000/- per month is highly excessive.

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The learned Legal Aid Counsel for the respondent has submitted that the respondent was ousted from the household of the petitioner and she is now residing separately with two school going minor children and she submits that the respondent does not even have the capacity to engage counsel of her own for which she was provided with legal aid. It is submitted that with two growing up school going minor children and she, it is not possible for the respondent to live a descent life at the maintenance award of Rs.3,000/- per month. However, on a query of this Court, she has admitted that in a separate proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 a further maintenance amount of Rs.3,000/- per month has been awarded by the appellate court. However, she submits that as regards the maintenance awarded thereunder, the respondent has filed the separate revision seeking enhancement of the award passed in the domestic violence case.

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Be that as it may, in the present case in hand, it is seen that there is no dispute at the bar that the respondent is residing separately from the petitioner and she has to take care of two minor school going children. The Court is inclined to take judicial notice of the high cost of living and there cannot be any dispute with the proposition that at this point of time, even a daily wage earner would be entitled to much more than Rs.100/- as wage per day. It is further seen from the paragraph 17 of the impugned order that the maintenance amount of Rs.3,000/- is further divided in three parts, making the respondent entitled to only Rs.1,000/per month, the minor girl of the parties is permitted maintenance of Rs.1,000/- per month

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and the minor son of the parties is entitled to receive maintenance of Rs.1,000/- per month. Accordingly, although it appears that maintenance of Rs.3,000/- is granted to the respondent but in fact the order impugned herein would show that the respondent is merely being entitled to Rs.1,000/- per month.

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Under such circumstances, there is no way that the maintenance amount of Rs.1,000/can be held by this Court to be excessive or beyond the capacity of the petitioner. Accordingly, this Court finds no merit in this application.

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Before parting with the record, this Court is inclined to record the submissions made by the learned Legal Aid Counsel to the effect that she is instructed that the up to date maintenance amount has not been paid by the petitioner, which the learned counsel for the petitioner disputes. Under such circumstances, it would be open to the respondent to take recourse to appropriate provisions of law if she has any grievance regarding non-payment of the maintenance amount awarded by the learned court below.

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With the aforesaid observation, this criminal petition stands dismissed.

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As the case is represented by the learned Legal Aid Counsel for the respondent, she would be entitled to her usual remuneration from the High Court Legal Aid Committee, Gauhati High Court, Guwahati.

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Comparing Assistant

Boby Sahu @ Sanjib v. Tara Devi

Case brief

What is this about?

What did the court decide?

Boby Sahu @ Sanjib v. Tara Devi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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Boby Sahu @ Sanjib Vs Tara Devi