Dismissed

Boby Sahu @ Sanjib v. Tara Devi

Gauhati HC11 Feb 2020Crl.Rev.P./281/2018

Case brief

AI extract

What is this about?

petitioner sought revision to quash appellate order awarding Rs.3,000/month maintenance under Domestic Violence Act. Court held amount was not excessive given minimum wages and Rejected procedural challenges regarding cognizance. Revision dismissed. Petitioner to pay pending arrears as per lower court.

What did the court decide?

Revision petition dismissed confirming lower appellate order; maintenance awarded remains in force.

Boby Sahu @ Sanjib Vs Tara Devi — Domestic Violence | Gauhati HC (2020)

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GAHC010043752018

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

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Case No : Crl.Rev.P. 281/2018

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1:BOBY SAHU @ SANJIB S/O LATE DURGA SAHU R/O VILL BALIJAN PS GOHPUR DIST SONITPUR ASSAM PIN-784172

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VERSUS

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1:TARA DEVI W/O SRI BOBY SAHU @ SANJIB D/O LATE HINDI BAHDUR KARKI R/O VILLAGE MADHYA CHARRANG PS GOHPUR SONITPUR ASSAM

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Advocate for the Petitioner : MR. R P HAZARIKA Advocate for the Respondent : MRS. P BARMAN (BORKAKOTI) (LEGAL AID COUNSEL)

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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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By this revision under section 401(5) Cr.P.C, the petitioner, who is the estranged husband of the respondent, has prayed for quashing of the order dated 02.07.2018 passed by the learned Additional Sessions Judge, Biswanath Chariali in Criminal Appeal No. 11(S-3)/ 2015.

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By the said order, the learned appellate Court had allowed the appeal filed by the respondent under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as D.V. Act). It is seen from the documents annexed to this writ petition that the learned trial Court had awarded monthly maintenance of Rs.4,000/- (Rupees four thousand only) per month which was scaled down by the learned appellate Court to Rs.3,000/- (Rupees three thousand only) per month. It was further provided that said maintenance amount would be deposited in the bank account of the respondent within 7^th day of every month. Aggrieved by the said appellate order, the present revision has been filed.

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The learned counsel for the petitioner has submitted that there was procedural irregularity in respect of proceeding before the learned trial Court. It is further submitted that the first complaint was made by the respondent before the District Welfare Officer, but the said District Welfare Officer did not examine any independent witness or the petitioner to find out about the veracity of the complaint. It is submitted that in course of the trial, several attempts were made to examine the District Welfare Officer, but despite summons being issued to him, he did not appear before the learned Trial Court. It is further submitted that the learned trial Court did not take cognizance of the defence by the petitioner as he had made allegation against the respondent that she was living an adulterous life for which she left the shared household at her own risk and that she was not entitled to any

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maintenance or separate residence. It is also submitted that the learned trial Court did not make any attempt to ascertain the income of the petitioner and proceeded to saddle the petitioner with maintenance without taking into account that the petitioner was under matriculate and did not have own source of income. The learned counsel for the petitioner submits that the petitioner is dependent on the family income and he is required to give financial support to his ailing mother, two unsound brother and sister and an unmarried brother from his income. It is submitted that those issues were not addressed even by the learned first appellate Court and accordingly, this present revision has been filed. In this regard, the learned counsel for the petitioner has referred to the written argument submitted by him before the learned first appellate Court.

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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 her own living cost, it is not possible for the respondent to live a decent 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 D.V. Act a further maintenance amount of Rs.3,000/per month has been awarded by the appellate court which included house rent. It is submitted that as regards the maintenance awarded thereunder, the respondent has filed the separate revision seeking enhancement of the award passed in the D.V. Act case.

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It is further submitted that the amount of maintenance awarded includes the rent required to be borne by the respondent for accommodating herself and the 2 (two) minor school going children, being twin daughter and son respectively. The learned legal aid counsel has further submitted that apart from maintenance being awarded in the present D.V. Act case, maintenance award was also passed in a separate application for filed under section 125 Cr.P.C, which was enhanced by order dated 21.02.2018 passed in proceedings under section 127 Cr.P.C. It is submitted in the said proceeding, Rs.3,000/(Rupees three thousand only) was awarded as maintenance under section 127 Cr.P.C., which was divided into Rs.1,000/- each for the respondent, for the girl child and the male child and, as such, it is submitted that the respondent is merely having a maintenance award of

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Rs.1,000/- under order passed under section 127 Cr.P.C.

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Having heard the learned counsel for the parties, the materials available on record has been perused. There is no dispute at the bar that the respondent is residing separately from the petitioner along with her 2 (two) minor school going children. As indicated hereinbefore, in the proceeding under section 125 and 127 Cr.P.C, the petitioner is getting maintenance of Rs.1,000/- per month whereas the maintenance granted by the learned first appellate Court in this D.V. Act case is Rs.3,000/- per month, which is inclusive of house rent. In this regard, the Court is required to take judicial notice of the high spiraling house rent even the remote places of the State including Gohpur where the respondent is residing. Although the learned trial Court and the learned first appellate Court did not determine the income of the petitioner, yet the maintenance of Rs.3,000/- per month for the respondent and two minor children inclusive of rent is on the lower side, which this Court is unable to accept as excessive or beyond the income capacity of the petitioner.

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At this stage, the learned legal aid counsel has submitted that the respondent has filed Crl.Rev.P. No. 413/2018 praying for enhancement of award passed in the D.V. Act case. Be that as it may, as the order of maintenance granted by the learned first appellate Court, awarding Rs.3,000/- as maintenance under the D.V. Act, which includes rent for the separate house of the respondent and her minor children, the Court does not find any material on record to show that the award of Rs.3,000/- inclusive of rent as maintenance is excessive. In this regard, it is seen that minimum wages operating in the State is more than the maintenance granted to the respondent. Under such circumstances, the Court is not inclined to interfere with the order of maintenance.

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It may be relevant to mention herein that the learned counsel for the respondent has raised the issue that the learned trial Court and the learned first appellate Court have failed to appreciate the contention of the appellant that the learned trial Court had not examined the petitioner before taking cognizance of the offence under the D.V. Act and that the District Welfare Officer had also not examined any witnesses including the petitioner or the respondent and allowed the adjudication to be instituted before the learned trial Court. In this regard, the Court is of the considered opinion that there is nothing in the D.V. Act which requires the District Welfare Officer or the Protection Officer from examining the

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witnesses and to arrive at a prima facie satisfaction that a cognizable case is made out and only then he would be permitted to refer the matter to the Court. Moreover, from the scheme of enquiry as contemplated under section 200 Cr.P.C., the petitioner has failed to demonstrate before this Court that in order to take cognizance of offence committed under the D.V. Act, it was required for the learned trial Court to examine the accused before taking cognizance of the offence. Under such circumstances, both the issues raised by the learned counsel for the petitioner is not sustainable and the said plea taken is rejected, being not in accordance with the scheme of the 2005 Act.

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Accordingly, the Court does not find any infirmity with the first appellate order under challenge and accordingly, by confirming the said order dated 02.07.2018 passed by the learned Additional Sessions Judge, Biswanath Chariali in Criminal Appeal No. 11 (S-3)/2015, this revision stand dismissed.

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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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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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JUDGE

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Comparing Assistant

Boby Sahu @ Sanjib v. Tara Devi

Case brief

What is this about?

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Boby Sahu @ Sanjib v. Tara Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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