HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No.15 of 2023
Smt. Kalpana Das,
Wife of Sri Ajay Das,
Daughter of late Nagesh Das, aged about __ years
Resident of Sonamura, P.O. Lankamura,
PS- West Agartala, District West Tripura.
–
----Petitioner(s)
Versus
1. Sri Ajay Das,
Son of Sri Manoranjan Das,
Resident of Battala, Gash Bazaar,
Near Joynagar, Dashamighat Road No.1,
P.O. Agartala, PS- West Agartala, District West Tripura.
–
2. The State of Tripura
----Respondent(s)
For Petitioner(s) : Mr. S. Lodh, Adv,
Mr. S. Majumder, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P,
Mr. R. G. Chakraborty, Adv.
Date of hearing : 22.02.2024
Date of delivery of
Judgment & Order : 29.02.2024
Whether fit for
reporting : YES
. JUSTICE BISWAJIT PALIT
HON’BLE MR
Judgment & Order
This Criminal Revision Petition is filed under Section
19(4) of the Family Courts Act, 1984 challenging the judgment
and order dated 05.11.2022 passed in connection with Case No.
Crl. Misc 181 of 2020 delivered by Learned Judge, Family Court,
Agartala, West Tripura whereby the Learned Judge, Family
Page 2 of 20
Court Agartala has rejected the petition for granting
maintenance allowance filed by the petitioner.
2. The gist of the petition filed by the petitioner before the
Learned Family Judge was that her marriage was solemnized
with O.P. Ajay Das on 19.04.2019 as per Hindu Marriage Rites
and Customs at Sanmura, Agartala, District, West Tripura in
presence of the well-wishers of both the parties. After the
marriage, the petitioner went to her matrimonial home and
started resuming conjugal life with OP as husband and wife. The
petitioner asserted that on the first night of her marriage, she
noticed that the OP was partially handicapped and after
marriage, she also heard that previously the OP got married
which was later on dissolved by a decree of divorce. On the first
day of ‘boubhat’, the OP took away her mobile phone for which
she could not communicate with her parents and others. On the
following day of her boubhat at about 11pm, the OP and other
relatives took her to their worship room and scolded her saying
that her parents had given sub-standard quality of articles
which might have stolen from somewhere and given in
marriage. They demanded more article as dowry. Not only that
the mother-in-law on each and every day used to abuse her in
slang languages and used to scold her saying that they would
not receive anything from her hand as she was of dark
complexion. The petitioner has to do all the household works
although her mother-in-law and other in-laws used to scold her
and she used to remain in half fed and unfed for days together.
Page 3 of 20
Even s s house during
he was also not allowed to visit her parent’
dhiragaman. On 26.05.2019, the petitioner came to know that
the younger brother of the petitioner sustained burn injuries on
his leg and after hearing the news, she informed the OP and her
family members to take her to see her brother but the OP
refused and scolded her by saying that she was telling lie. After
that, on 29.05.2019, she was allowed to visit her brother when
the petitioner made the OP understand. But after coming to her
, she disclosed all the miserable facts and mental
parent’s house
torture committed upon her at her matrimonial home and
expressed her unwillingness to go back to her matrimonial
home as she apprehended that if she returns back she would be
killed. As the financial condition of her brother was not sound, it
was difficult on his part to maintain the petitioner. The OP also
never enquired about her nor visited the par
ent’s house of the
petitioner and since then she has been residing at her parent’s
house having no source of income. It was further submitted
that the OP was earning Rs.10,000-12,000/- per month but he
was not paying any maintenance to the petitioner. Hence, the
petitioner filed the petition before the Court seeking
maintenance.
3. In obedience to the notice issued, the OP contested the
proceeding by filing written objection and he admitted the fact
of his marriage with the petitioner. But he denied the entire
allegation in averments made by the petitioner in her petition.
The OP further took the plea that the petitioner was aware that
Page 4 of 20
he is partially handicapped and a divorcee and as such she
agreed to marry him and this matter was disclosed prior to the
m his residence
arriage and the petitioner’s family visited
two/three occasions. It was further asserted that on the day of
marriage, the petitioner and her family members started
abusing him saying that he is a handicapped person cannot
walk properly and he looks like an idiot but the OP did not react
to their comments and after completion of marriage ceremony
she started saying that she does not want to reside with the OP
as husband and wife and after several persuasion she agreed to
go to her matrimonial home. It was further asserted that after
coming to her matrimonial home she was given all respect by
the OP and his family members but the petitioner was always
living with a mindset that her husband is handicapped and used
to abuse him saying that all his family members have made her
fool by giving her marriage with a handicapped person and she
was not willing to do household works. The OP further
submitted that all the time the petitioner was engaged with her
mobile phone and used to talk regularly with her family
members. In one occasion, her sister-in-law came to the
matrimonial home of the petitioner and started shouting to the
mother-in-law of the petitioner saying that why the petitioner
could not receive her call and she would face dire consequences
in future. The OP further submitted that when the brother of the
petitioner sustained injury she was sick and all the family
members in the matrimonial home suggested her not to visit
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her parent’s house to see her brother and on the next day, the
petitioner
remained sick and father of the OP rushed to parent’s
house of the petitioner and told them they will help in the
situation if anything is needed and when the petitioner
recovered from her illness, she went to see her brother but
after going to her parent
’s house, she did not return back to her
matrimonial home inspite of repeated request, saying that she
will not return back and refused to live her life with OP. The OP
requested her to return back but she abused him over phone.
He further stated that he does not earn Rs.10,000-12,000/- per
month rather he earns Rs.3,500/- as an employee in a garment
shop and he is very much eager to resume his conjugal life with
the petitioner but the petitioner voluntarily left her matrimonial
home. So, she is not entitled to get any maintenance.
4. To substantiate the case, the petitioner before the
Learned Court below adduced two witnesses and the OP himself
examined himself as OPW-1. Thereafter, after hearing both the
sides, Learned Judge, Family Court dismissed the petition of the
petitioner claiming maintenance.
5. For the sake of convenience, the operative portion of
the order of the Learned Family Judge runs as follow:
O R D E R
In the result, the petition filed by the petitioner
Smt. Kalpana Das against the O.P. Shri Ajoy Das U/S
125 of Cr.P.C. claiming maintenance stands
rejected.
In view of the above, the instant case is hereby
disposed of on contest.
Supply a copy of this order to both the parties free
of cost for taking necessary steps.
Page 6 of 20
6. Heard Mr. S. Lodh, Learned Counsel for the petitioner-
wife and also heard Mr. R. G. Chakraborty, Learned Counsel for
the OP-husband.
Learned Counsel for the petitioner submitted that the
petitioner had a strong case in her favour but the Learned Court
below without any basis by the impugned order rejected the
claim petition of the petitioner. It was argued by Learned
Counsel for the petitioner that the OP did not dispute his
marriage with the petitioner and the petitioner was subjected to
mental and physical torture at her matrimonial home for which
she was compelled to leave her matrimonial home. It is fairly
submitted by Learned Counsel for the petitioner that the OP
husband was a divorcee person and knowing fully the physical
disability, he married the petitioner and failed to maintain
marital obligation with the petitioner being a legally wedded
husband. Learned Counsel further submitted that the OP
although took the plea that he is totally disabled and relied
upon disability certificate but to substantiate his claim, no
officer or authority who issued the certificate was produced
before the Learned Court below. So, no reliance can be placed
upon the disability certificate. Learned Counsel further
submitted it is found that the OP
that if for argument’s sake,
husband is a disabled person, in that case also, he cannot
escape from the liability of paying maintenance to the petitioner
and furthermore, since the OP husband has suppressed the fact
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of his disability at the time of marriage to the petitioner and her
family. So, it is a clear case of cruelty upon the petitioner and
submitted that Learned Court below did not consider all these
aspects and rejected the application of the petitioner for which
he sought intervention of the Court and urged for setting aside
the order passed by the Learned Court below and prayed for
granting maintenance allowance in favour of the petitioner.
7. On the other hand, Mr. R. G. Chakraborty, Learned
Counsel for the OP husband submitted that the OP does not
deny his marriage with the petitioner but he is totally a disabled
person having no source of income and furthermore, there was
no refusal or neglect on the part of the OP husband to provide
maintenance to the petitioner and the petitioner herself
voluntarily without any justified grounds left her matrimonial
home. Learned Counsel further submitted that the OP husband
filed a case for restitution of conjugal rights where an ex parte
decree was passed and inspite of allowing decree, the petitioner
wife did not join at her matrimonial home to resume conjugal
life with the OP husband. Situated thus, according to Learned
Counsel, the Learned Court below rightly and reasonably
dismissed the petition seeking maintenance and asked for
upholding the order dated 05.11.2022 rejecting the
maintenance petition by the Learned Family Judge.
8. I have heard submission of Learned Counsel for
both the parties at length and gone through the record of the
Learned Court below. The subject matter of the dispute has
Page 8 of 20
been discussed above in detail. Now let us examine what
evidences were adduced by the parties before the Learned
Court below to substantiate the claim and counter-claim.
9. As already stated, the petitioner has adduced two
witnesses including herself. The petitioner Smt. Kalpana Das as
PW-1 in her examination-in-chief stated that her marriage was
solemnized with the OP Ajay Das on 19.04.2019 as per Hindu
Marriage Rites and Customs. After the marriage, she went to
her matrimonial home at Battala and started residing with the
OP as husband and wife. After marriage, she noticed that OP is
having some physical problem which was not disclosed at the
time of marriage. After a week, the OP and his family members
started mental torture upon her on the ground that she had
black complexion and not good looking. The OP and his family
members arranged the marriage after seeing her but inspite of
that they started insulting her. The OP even on occasions used
to cause physical torture upon her and beat her. She was
tortured on the ground that her parents could not give TV,
fridge, etc at the time of marriage but after few days of
marriage, the OP and his family members took away her mobile
phone for which she could not contact with her parents. Even
her in-laws used to question her about intimate relation with
the OP and stated her how she spent her days with him. She
was not provided proper food in the house and almost kept in
starvation. Even she was not allowed to visit her parental
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house. She further stated that she was told that she would be
allowed to visi
t her parental house if her parent’s and guardian
attend the meeting to which she agree and the OP and his
family members allowed her to go to her parental house in the
month of May, 2019 and that time being asked by her, the OP
and his family members handed her back her mobile phone.
She further stated that the OP and his family members even
then did not stop torturing her mentally and called her over
phone and asking her as to why no such meeting was called for.
Her mother already undergone 2 strokes and was not in a
position to bear such things. The brother of the OP threatened
her over telephone and told her that he would teach her nice
lesson. She further stated that her niece who studied in a
school was tried to be abducted from the school by the sister
and sister-in-law of the OP and even threatened her niece with
dire consequences if she discloses it to anyone. A GD entry of
the same was made before Police. She further stated that she
was staying at her parental house since 29.05.2019 but the OP
did not provide anything for maintenance. She further
submitted that she maintain herself by selling milk of two cows
which they have. The OP has a shop of cloth and at the time of
marriage, it was told that his monthly income was Rs.10,000-
12,000/-. She further stated that she does not have any other
source of income and the OP inspite of having income does not
provide any maintenance to her. So, she filed the claim petition
claiming maintenance at the rate of Rs.5,000/- per month.
Page 10 of 20
During cross-examination, she stated that the OP is
physically handicapped and he has less hearing capability and
unable to speak properly and he has difficulty in walking and is
unable to do any hard labour. She could not say as to whether
the OP is 82% physically disability or not. She further stated
that she had no knowledge about any certificate and also could
not say whether any case for restitution of conjugal rights
bearing TS(RCR) No.8/2020 was filed or not. She further stated
that they used to reside in the joint mess in the matrimonial
home along with brother and sister-in-law of the OP. She
further stated she did not file any complain before any such
authority regarding alleged physical and mental torture upon
her by the OP and his family members. Nothing more came out
relevant.
10. PW-2 Shri Matilal Das deposed that the petitioner
is his neighbour. Her marriage was solemnized with the son of
Samir Das as per the Hindu Rites and Customs. After the
marriage, the petitioner went to her matrimonial her at Battala,
Ghash Bazar and started residing with OP as husband and wife.
Presently, the petitioner is staying at her parental house. After
one month of marriage, Kalpana came to her house and
informed that she could not reside at her matrimonial home and
being asked she informed that her husband and in-laws
tortured her and even she was not allowed to have day’s meal
properly. Even tiffin was provided by measuring it. The
petitioner is residing separately for last 2 years but the OP does
Page 11 of 20
not take any information nor provided any maintenance to the
petitioner and the petitioner and her mother was surviving by
selling milk of two cows which they own. He further stated that
the brother of the petitioner maintained separate mess and they
maintain themselves only. Further stated that the father of the
OP informed that the OP is not literate enough as such he works
in a cloth shop and at the time of marriage, it was said that his
monthly income is Rs.10,000-12,000/- but actually it is
Rs.1,500/- per month.
During cross-examination, he stated that after one
month of marriage, the petitioner is residing at her parental
house till date and after marriage they came to know that the
OP is a worker in a cloth shop and gets Rs.1,500 per month as
salary.
11. The OP as OPW-1 deposed on oath that the
petitioner is his wife. The petitioner is not residing with him for
last 1‰ to 2 years. He filed an RCR case for restitution of
conjugal rights and he submitted the copy of judgment passed
in TS(RCR)8/2020 and identified the certified copy of judgment
and final order which was marked as Exhibit-A in 5 sheets. He
also submitted disability certificate and identified the same
which was marked as Exhibit-B.
During cross-examination, he stated that he can
understand and hear whatever questions put to him and further
volunteered that he can hear if spoken loudly. Further stated
that he had sent the copy of judgment after 1 year as he
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received it on that date to the petitioner. He has not submitted
any document to show that he is unemployed and further
stated that the house in which he resides is a two-storied
building. He further submitted a document which shows that he
used to work as an employee but got only Rs.2,000/- and not
Rs.5,000/- per month. Further stated that he married to the
petitioner on 19.04.2019 and the disability certified was issued
on 08.04.2021 and he has not submitted any other document
except disability certificate. These are the synopsis of the
evidence on record of the parties in respect of determination of
the case before the Learned Family Judge.
12. Admittedly, in this case, there is no dispute on record
regarding marriage of the petitioner wife with OP on
19.04.2019 as per Hindu Marriage Rites and Customs. It is
also on record that the petitioner is presently staying with her
mother at her parental house. Admittedly, in this case, the
petitioner-wife could not adduce any documentary evidence
on record showing the actual monthly income of the OP
husband. The OP husband took the plea that he is totally
disabled, as such, he is not in a position to pay any
maintenance to his wife and in this regard, he relied upon
Exhibit-B i.e. the disability certificate from which it appears
he has got 59% disability in respect of hearing impairment,
intellectual disability is 75% and locumotor disability is 60%
Page 13 of 20
as opined by the District Disability Board by the certificate
dated 08.04.2021.
13. In a case under Section 125 of Cr.P.C., it is the duty of
the Court to see as to whether the husband having sufficient
means neglects or refuses to maintain his wife or not in
considering maintenance allowance in favour of the wife. Here,
in the case as already stated, no documentary evidence was
produced and proved by the petitioner showing the monthly
income of the husband. The petitioner in her application and at
the time of evidence before the Court submitted that the OP has
a shop of cloth and at the time of marriage it was told that his
monthly income was about Rs.10,000-12,000/-. Similarly, PW-2
also supported the version of the petitioner although, PW-2 also
stated his actual income is around Rs.1,500/- per month. The
OP save and except production of document like disability
certificate and the certified copy of judgment passed in
connection with TS(RCR)8/2020 did not submit anything
objecting the claim of the petitioner. It is surprising that if the
OP husband was actually suffering from disability then why he
entered into the marriage tie with the petitioner of the case.
14. More so, he married the petitioner in the year 2019 and
the disability certificate was issued in the year 2021 i.e. after 2
years of marriage. It is also on record due to family discord the
petitioner had to leave her matrimonial home. The OP by the
trend of cross-examination of the petitioner and her witness
could not discard the evidence regarding cruelty upon her by
Page 14 of 20
the OP and his family members. There is also no evidence on
record that the OP tried to mitigate her dispute with the
petitioner or even he paid any maintenance towards the
livelihood of the petitioner of this proceeding. Although he relied
upon the judgment of the Family Court in connection with
TS(RCR)8/2020 which was passed ex parte.
15. The petitioner stated that she had no idea about filing
of RCR case by the OP husband and the OP in course of his
examination before the Court stated that he had sent the copy
of judgment after 1 year to the petitioner. The decree of RCR
favoured in favour of the OP husband would not give any extra
privilege to the OP husband to refuse maintenance to the
petitioner wife. Learned Court below on the ground of disability
rejected the claim of the petitioner wife. Learned Court below
also took the plea that the petitioner is surviving by selling milk.
This observation of the Learned Court below was made without
any legal reasoning because it is on record that since from the
year 2019, the petitioner is staying at her parent’s house. It is
on record that the OP by this time did not pay any maintenance
to his wife. There is also no evidence on record that the brother
or the parents of the petitioner have/had sufficient means to
maintain the petitioner during her hardships. So, in absence of
any monetary support, how the petitioner would survive?
Naturally for survival, she had to do something. There is
evidence on record that by selling milk of cows belonging to
them. Here, the interpretation of them would mean either the
‘ ’
Page 15 of 20
parents or the brother of the petitioner. So, it is quite natural
that by selling milk of cows she is somehow maintaining herself
and her mother. But this ground of the Learned Court is not a
justified ground in the eye of law to reject her maintenance
petition.
16. In Babita v. Munna Lal reported in (2022) SCC
OnLine Del 4933
, wherein Hon’ble Delhi High Court observed
as under:
“55. There is nothing in law to debar grant of
maintenance under Section 125 Cr. P.C. in case a
decree of restitution of conjugal rights is possessed by
the husband.
56. There is no express bar to grant maintenance to a
wife, against whom a decree for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act has
been passed. There is, therefore, no bar to entertain
application for grant of maintenance.
57. Thus, this Court holds that the view held by the
learned Trial Court that an order of a Civil Court
granting ex-parte decree of restitution would
automatically put an end to her right to grant on
maintenance under section 125 Cr. P.C. is incorrect. In
case it was contested by both the parties and then
would have been decided in favour of the husband and
being in default in not returning, in these
circumstances it could become a ground to deny
maintenance to her. An ex-parte decree for restitution
of conjugal rights is not an absolute bar for
consideration of application under section 125 Cr. P.C.
In case the court is satisfied on the basis of evidence
before it that the wife had justifiable grounds to stay
away from the husband, maintenance can be granted.
In the case at hand, the learned judge clearly
mentioned in the order that the wife had led evidence
to prove that she had every reason to stay away from
the husband as there was risk to her life at the hands
of the husband. The learned Judge should have in that
case decided the case based on the said evidence,
which unfortunately, he did not even assess or
appreciate. If the evidence on record shows that due
to husband’s conduct the wife has not been able to live
with him and he has denied to maintain her and the
minor children, maintenance cannot be refused to her.
58. A decree of a Civil Suit can be held to be binding
qua leaving company of husband without reasonable
cause, only if proceedings before the Civil Court 9 of
HMA dealing with case under Section specific issue has
been framed in this regard and the parties have been
given opportunities to lead evidence and specific
findings are recorded by Civil Court on contested
merit. However, in cases where the husband has
obtained an ex-parte decree of conjugal rights from a
Page 16 of 20
Civil Court, it cannot be held to be binding on the court
exercising jurisdiction under Section 125 Cr. P.C.
59. The mere presence of a decree of restitution of
conjugal rights against the wife does not disentitle her
to claim maintenance if the conduct of the husband is
such as to ensure that she is unable to obey such a
decree or it was the husband who had created such
circumstances that she could not stay with him.
60. Another aspect of this case is that if one will
examine the noncompliance of decree of restitution of
conjugal rights, it may result into a divorce. It is
settled law that even a divorced wife is entitled to
claim maintenance. In these circumstances, it is
improper and unfair to deny maintenance to the wife.
However, she has to independently establish her claim
under Section 125 Cr. P.C. of the Code and fulfill all the
conditions laid therein.
61. The repercussions of ex-parte decree if not
challenged would follow qua her, under HMA, but her
non-appearance in those proceedings cannot take
away her right to maintenance, if she is able to make
out a case on merit on its own strength. It was
improper not to pass a judgment on the strength of
evidence of petition under Section 125 Cr. P.C.
62. While appreciating cases under Section 125 Cr.
P.C., the Trial Court has to be sensitive and cautious
that each case has to be decided on its own peculiar
facts and circumstances as edifice of every such case
is different.
63. In these circumstances, it is apparent that the
learned Trial Court has committed an error in holding
that the wife was not entitled to maintenance as an
ex-parte decree for restitution of conjugal rights was
passed in favour of the husband, without appreciating
the evidence before it regarding the conduct of the
Respondent and the willingness of the Petitioner to
stay with him as well as ill-treatment and atrocities
committed by the Respondent/husband. The same
were disregarded in totality by the learned Trial Court.
65. Therefore, this court would by way of reiteration
hold that mere existence or non-compliance of a
decree of restitution of the conjugal rights by itself
would not debar or disentitle the wife within the
meaning of Section 125 of Cr. P.C. from getting an
order of maintenance.”
Thus, it is clear and settled that a decree of the exparte
R.C.R. would not be a bar for granting/allowing maintenance.
17. Now, we are to see whether the OP has means to
provide maintenance to the petitioner. There is no evidence on
record regarding the exact income of the petitioner. But there is
evidence on record that the OP husband has got homestead and
he is residing in a two-storied building. It is also on record that
Page 17 of 20
he used to work as an employee in a shop although the OP
husband stated that he is getting Rs.2,000/- per month. But he
could not explain for how many days he is working to that shop
and what is his daily wages.
18. The petitioner and her witness stated that at the time
of marriage, it was disclosed by the OP husband that his income
was around Rs.10,000-12,000/- per month but in this regard no
documentary evidence is proved by the petitioner. It may so
happen that for the purpose of marriage knowing fully that he
was disabled, the said fact of earning money was disclosed to
them which in my considered view is nothing but a suppression
of facts to defraud the petitioner. Alternatively, it can be
presumed that knowing fully that the O.P. was capable to
maintain his wife in spite of disability, the O.P. married the
petitioner.
19. In Rafeeq v. Summayya reported in (2015) SCC
OnLine Ker 39606
, the Hon’ble Kerala High Court in para 5 of
the judgment observed as under:
“5. Going by the impugned order, it is seen that, in the
year 1992, while he was studying in 9th standard, he
had suffered a physical ailment and subjected to a
surgery. He was treated in a hospital and the doctors
diagnosed that he is suffering from residual quandry
paralisis and thereafter the petitioner is suffering from
60% permanent disability. The factum of disability is
not disputed and the same is evident by the disability
certificate produced by the petitioner. Indisputably, at
the time of marriage, the petitioner was having the
disability. The petitioner has no case that after the
marriage, the percentage of disability has increased and
no document had been produced to that effect.
Therefore, it could be reasonably presumed that, at the
time of marriage itself, he was having 60% disability;
Needless to say, knowing his disability, he married the
1st respondent and subsequendy, they were blessed
with a son, the 2nd respondent. Since the disability was
subsisting at the time of marriage, he was fully
confident that he can maintain a family and thereafter,
Page 18 of 20
no change of circumstances. Though the certificate has
been produced to show that he is having 60% disability,
no document has been produced to show that he has
fully lost his earning capacity, or he is totally incapable
to do any kind of work so as to earn livelihood for his
family. It is a matter of common knowledge that
physically challenged persons also can do some kind of
work or do certain business so as to earn livelihood for
his family and they can choose the nature of business
and work or employment in accordance with their
nature of disability and handicap. So physically
challenged husband cannot be exempted from his
statutory liability to maintain his wife and children
under S. 125 of the Cr.P.C., unless; it is found that
subsequent to the marriage, he became totally
incapable to do any kind of work or business to earn
livelihood for his wife and children. No lenient view can
be taken to him, particularly, when the disability or
handicap was subsisting at the time of marriage and
birth of the child. On the other hand, if the percentage
of physical disability or handicap occurs or increases
after the marriage, the percentage of the loss of earning
capacity can be proportionally considered for fixing the
quantum of maintenance allowance. In this case, it is
pertinent to note that the specific case put forward by
the first respondent is that the revision petitioner is
doing business in fancy articles and he is a member of
the Kerala Pigeon Society. It could be reasonably
presumed that he is earning from pigeon business also.
Exts. Al and A2 go a long way to this extent. Therefore,
I do not find any perversity in the appreciation of
evidence from which the court below arrived at a
finding that the respondents are entitled to get
maintenance allowance.”
Here, in the case at hand, it is the admitted position
that OP husband is suffering from disability but that disability
does not mean that he is totally incapable of doing any job
rather he himself admitted that he used to attend a shop as an
employee or worker. Considering the prevalent situation in the
market if a person either as a worker or as an employee
attends any shop or establishment in that case in my
considered view, he will be earning not less than Rs.5,000/- to
6,000/- per month. So, the statement of OP that he was
earning Rs.2,000/- cannot be believed and the witness of the
petitioner although in his examination-in-chief stated that he is
earning Rs.1,500 per month that was without any basis or
Page 19 of 20
calculation. Since the OP husband has got his own homestead
building and he is attending in a shop to discharge his functions
as a worker or as an employee inspite of his disability, so, in my
considered view, Learned Court below without application of
proper mind has rejected the claim of the petitioner wife.
More so, earning some money by selling cow milk was
not a ground to reject the claim petition of the petitioner wife
by the Learned Court below. Furthermore, since the OP
husband knowing fully that he was suffering from disability
married the petitioner, so, in my considered view and in view of
the principle of aforesaid citation, the OP husband shall be
under legal obligation to provide maintenance to the present
petitioner of the proceeding.
20. Since there was no any specific evidence on record in
respect of the income of the OP husband, so, it would be
prudent if the monthly maintenance allowance at the rate of
Rs.1,500 per month is awarded in favour of the petitioner from
the month of July,2020 onwards in view of the judgment passed
by Supreme Court of India in Rajesh v. Neha and another
reported in (2021) 2 SCC 324.
21. In the result, the revision petition filed by the petitioner
is hereby allowed. The order dated 05.11.2022 passed by
Learned Family Judge, Agartala in Civil Misc. No. 181 of 2000 is
hereby set aside. The petitioner Smti Kalpana Das is entitled to
get maintenance allowance at the rate of Rs.1,500/- per month
from the month of July,2020 onwards. The OP be asked to pay
Page 20 of 20
the maintenance allowance as ordered to the petitioner to her
address by sending money order or by any other mode
convenient to the petitioner. The OP shall pay maintenance
allowance to the petitioner from the month of March onwards
within 10 days from the first day of month i.e. the maintenance
allowance of February,2024 will be given by the OP to the
th
petitioner within 10 March,2024 and thereafter accordingly
within first 10days of the next month to which the maintenance
allowance shall become due to the petitioner and the arrear
maintenance allowance from the month of July,2020 (although
petition was filed on 30.06.2020) to January,2024 i.e. for 43
months at the rate of Rs.1500/- per month which comes to
Rs.64,500/- be given by the OP husband to the petitioner within
a period of 36 months in equal installments in addition to his
normal maintenance allowance from the date of passing of this
order.
A copy of this order/judgment be supplied free of cost
to the Learned Counsel for the parties for information and
necessary action. Send down the LCR alongwith a copy of this
judgment. This revision petition is thus disposed of on contest.
Pending application(s), if any, also stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.03.02 00:51:51
-08'00'
Deepshikha