Upload
others
View
6
Download
0
Embed Size (px)
Citation preview
1
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
IN THE COURT OF SUB-DIVISIONAL JUDICIAL MAGISTRATE (M), TITABAR
Ref. : Misc. case No. 24 of 2018
Under section 125 of Cr.P.C.
Smt. Annapurna Chutia ……... 1st Party
-Vs-
Sri Bhaskar Jyoti Saikia …….. 2nd Party
PRESENT : SMT. SUTAPA BHUSAN, A.J.S. SUB-DIVISIONAL JUDICIAL MAGISTRATE (M), TITABAR
Date of recording 1st party evidence …….. 17.11.2018, 17.06.2019
Date of recording 2nd party evidence ……. 06.04.2019, 06.05.2019
Date of argument ....... 03.06.2019
Date of judgment/order ....... 11.07.2019
Advocate for the 1st party .... Sri Biswajyoti Saikia & Sri Deepak
Prasad, Ld. Advocates.
Advocate for the 2nd party .... Sri Debobrata Paul, Ld. Advocate.
JUDGMENT AND ORDER 1] The application filed by the 1st party under section 125 of Cr.P.C. inter-
alia states that she was solemnized her social marriage with the 2nd party on
21.04.2003 as per Hindu Customs and rites and at the time of her marriage she
was provided with all the streedhan as required in her marital life. Thereafter,
the second party gradually started to abuse the first party with filthy language
and inflicted mental torture upon her. First party tried to adjust with her conjugal
life considering all these atrocities as a domestic wear and tear of conjugal life
and everything will be alright as the time goes by. The 2nd party used to come
home late night and under the influence of alcohol mentally torture the 1st party
and used to demand dowry from her. The 2nd party is a Contractor by profession
having 2nd Class Contractor in the Department of P.W.D. and he used to submit
tender during the course of his contractual works and he demands the first party
to bring cash amount from her father so he can submit tender. The 1st party to
2
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
get rid of the mental torture used to bring cash amount from her parents. The
parents of the 2nd party remain insufficient to the attitude of the 2nd party and
often took side of him instead of correcting his behavior. That amidst all these
turbulence the 1st party out of her wedlock with the 2nd party becomes mother of
a son who was born on 03.04.2005 at Golaghat Nursing Home and he was
named as Sri Aditya Raj Saikia. At the time of delivery of the child, the 1st party’s
parents bears the entire expenditures incurred on the delivery. That even after
delivery of the child the 2nd party behavior did not change at all and he continues
to inflict physical torture on the 1st party. He often comes home late night and
talked with some of his female friend over phone and when the 1st party asked
about the same he retorted furiously and tried to assault the 1st party. The 2nd
party often threatened the 1st party with dire consequences and threatened to
divorce her. He even called his mother-in-law (1st party mother) over phone and
threatened that he will divorce the 1st party and also abuses his mother-in-law
with filthy unspeakable words. The 1st party tried to tolerate all those brutality for
the sake of her marital life and for the future of her child. The 2nd party often
seemed to roam around with some female friends and come home late night
after heavily drunk and when the 1st party tried to resists such immoral attitude
he often turned violent and abuses to the 1st party and physically assaulted her
by pulling her hair and slapped her and also kicked her. The 2nd party often kept
the 1st party outside his room and deprived her off food and during the harsh
winter nights the 2ndpaty compels the 1st party to stay outside and left her to
shiver in cold. The each and every day of first party marital life turned out to be
her worse nightmare and she lived in a constant fear apprehending for her life.
The 1st party in spite of such intolerable cruelties remains mute spectator to all
such atrocities for the sake of saving her marital life and with the endless waiting
that the good sense will prevail and the 2nd party will amend his attitude but her
waiting did not bears any results. On 13.12.2013, the 1st party gave birth to a girl
child namely Smt. Angelina Saikia at Golaghat Nursing Home and at that time the
2nd party did not look after the second party and did not spend a single penny on
3
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
the delivery. 1st party requested her parents to bail her out and accordingly the
parents of the 1st party bears the entire expenditure incur of the child birth. The
2nd party at such crucial time chooses to ignore the first party completely and did
not provide her with proper care and attention and look after her wellbeing. After
delivery of the girl child the physical and mental torture of the 2nd party
intensifies and he used to come home late night frequently and always found to
be talked with his female friends over Smartphone till late night. The 1st party
also noticed that the 2nd party often shared some indecent messages with his
female friend via whatsapp and other social media platform and also shares
some obscene photographs with them. The 1st party when asked the 2nd party
about such shameful conduct he turned furious and physically assaulted the 1st
party. During the month of March, 2014 the 2nd party physically assaulted the 1st
party and asked her to leave her matrimonial home immediately. The 1st party
along with her three months old daughter compels to leave her matrimonial
home and took shelter in one of her friend name Smt. Nitumoni Baruah. On
hearing such incident the mother of the 1st party immediately called the 2nd party
over phone and asked him to sort out the matter or else they will be compel to
take proper action and the 2nd party who is a cunning person apprehending
arrest called the 1st party and took her back to her matrimonial home and
promise her that he will not repeat such behavior in future. The 2nd party often
hurled baseless allegation of adultery against the 1st party to save his own skin.
The 1st party being an educated lady was doing her job of a contractual Teacher
as a computer faculty under Rajib Gandhi Computer literacy programme and
during the course of her job she sued to remain outside home during job time.
The 2nd party often ridicules her and hurled baseless allegations of having
adulterous relations with her colleague and humiliates her frequently. The 1st
party feels embarrassed and humiliated at such baseless allegations and often
tried to remain mute spectator. The 1st party on February 2018 had to left for
Guwahati with her female colleague for documents verification and returned
home late night as it needs considerable time to travel from Guwahati to
4
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
Golaghat. The 2nd party soon after the arrival of 1st party abused her with filthy
languages with frivolous allegations of having illicit relationship. The said
allegations are raised by the 2nd party frequently to cover up his own adulterous
and indecent relationship and his bohemian behavior and illicit affairs with some
female friends. The second party wants to hush up the voice of the 1st party and
for that purpose he systematically hatched up a conspiracy to silence the
pretesting voice of the 1st party. The 2nd party in amidst of all these brutal
behavior regularly called the 1st party mother over phone and threatened her
that if the 1st party did not divorce him he will kill her. The 2nd party also showed
‘dao’ to the 1st party and threatened her that he will kill her one day and dumped
her body somewhere. The parents of the 2nd party always took an indifferent
stand and they never tried to interfere and suggest their son to correct his
behaviour. The 1st party has no any shoulder to rely on and often think of
committing suicide to get rid of such hopeless and horrible life. On 07.06.2018,
the 2nd party come home late night as usual and the 1st party noticed that he is
sending some nude photograph vide whatapp to his female friend who is also a
married wife. The 1st party immediately raised a protest and asked the 2nd party
for sharing such indecent images to a lady. The 2nd party turned furious and
started to assault the 1st party physically by pulling her hair and slapped her and
hurled blows to her cheek with his fist. He also kicked her in her delicate parts of
the body and tried to kill her. The 1st party raised hue and cry and somehow
manage to come out of the clutch of the 2nd party and called her mother over
phone and request them to come and rescue her. The 2nd party immediately
called the 1st party parents and asked them to take the 1st party immediately or
else he will kill her. Since 10.06.2018 the 1st party is living with her parents along
with her minor daughter who 5 years old. The 1st party left her contractual job of
a computer faculty due to continuous physical and mental torture and being
unable to cope up with her turbulent marital life and she is not in a position to
maintain herself and her minor daughter. The 1st party also needs to get her
daughter admission in school and the 2nd party since 10.06.2018 is not making
5
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
any contact with the 2nd party. The 2nd party till date never bears a single penny
on the 1st party and his daughter. Adding insult to her injury the 2nd party is
forcibly keeping the minor son with him against his wishes and deprived him
from the care of her mother. 1st party has been living a miserable life with no
hope and aspiration. She was waiting with a faint expectations that the 2nd party
will come back and take her and his daughter to resume their conjugal life; but
unfortunately her hope did not yield the desired results as the 2nd party never
turned up to reconcile and on the contrary on 23.06.2018 he came to Nagajanka;
Mariani and visited the residence of witness No. 2 who is cousin brother of the 1st
party and abused him with filthy languages and threatened to divorce the 1st
party and also told him that he will not pay a single penny to her and will left her
die in starvation. The 2nd party is an established Contractor having 2nd Class
Contractor registration in the Department of P.W.D. He also performed various
contract works under PMGSY and one of his contract works is Road contract from
“Jackson Pothar to Rong Bong Pothar” of amount Rs. 76.52 Lakh, who regularly
pays his income tax and maintains a handsome income tax file due to his high
income against his PAN CAPPS1163P. The second party annually performed
contract works of more than 5 crore. Apart From the contractual works he is an
owner teas leafs and also has massive agricultural ancestral landed property in
Dolowjan Gaon; Aathgaon Mouza; Golaghat Revenue Circle; Golaghat which also
fetch him considerable income from its proceeds. The 2nd party is also the
registered owner of a Mahindra Bolero 7 seater bearing Registration No.
AS12H1352 which he earlier given to Numaligarh Refinery Limited on contractual
basis and earn more than Rs. 1, 50,000/- only per month from the said vehicle.
The 2nd party due to his high income used to live a lavish and extravagant
lifestyle and he is the registered owner of a Royal Enfield Classic motorcycle
bearing Registration No. AS05G1400 and also the registered owner of a Maruti
Swift VDI bearing registration No. AS05D3999. The 2nd party family comprising of
his father who is a retired school Head Master and mother. The sister of the 2nd
party is already married and he has no any family liabilities to give an excuse.
6
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
The 2nd party due to his lavish lifestyle and high income used to throw parties
frequently among his friends and also spent lavishly on drinks and foods. The
second party from all his sources earns more than Three Lakhs only per month.
1st party at present solely relying on the income of her parents as she is unable
to maintain herself and her minor daughter. The 1st party is facing immense
difficulty in maintaining herself and also find it’s difficult to get her daughter
admitted in school for education. The 2nd party in spite of having all the luxury
and comfort as mentioned herein above did not provide a single penny to the
first party till date for her maintenance and place the first party in penurious and
hopeless position and the first party being left with no other option compel to file
this maintenance application by praying to grant maintenance of amount Rs.
35,000/- (Rupees Thirty Five Thousand) per month to the 1st party for her
maintenance and maintenance amount of Rs. 15,000/- (Rupees Fifteen
Thousand) only for maintenance of her minor daughter in Total Rs. 50,000/-
(Rupees Fifty Thousand) only per month as per provision of law.
2] On filing of this application under section 125 Cr.P.C. same was
registered and notice was issued to the second party who appeared and
contested this case by filing written statement. In the written statement 2nd party
stated that the facts stated by 1st party are false, fabricated and baseless. The
second party in his written statement denied all the allegations and replied their
statement in para-wise. 2nd party has stated that though he is a Contractor as
mentioned in para-2. He has not received any contract work. He admitted that
the marriage was solemnized with the 1st party as per Hindu rites and rituals. He
has denied the allegations made in para-4 regarding abusing and torturing 1st
party. Regarding Para No. 5, 2nd party has denied that he used to come late in
drunken condition in their house and tortured 1st party demanding dowry.
Though, he admitted that the birth of two children. He denied that the expenses
were not borne by him. He also denied the allegations made in para-6 regarding
illicit relationship with another woman and threatening to divorce. 2nd party has
7
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
also denied the allegations made in Para-7, 8 and 9 and admitted the birth of a
girl child, but denied the suggestion that not bearing any expenses. In his written
statement, 2nd party denied the allegations made in Para-10, 11, 12, 13, 14, 15
and 16 and regarding para no. 7, 2nd party has admitted that the brother of 1st
party Ashim Chutia and Uma Kanta Chutia came to his house, but denied the
allegation that they were misbehaved and asking them to take 1st party with
them. Otherwise, he will kill her. Regarding para no. 18, 2nd party has denied the
allegations made in para-18 as he stated that 1st party without any reason
started to live in her mother’s house and though 2nd party tried to bring her back,
but 1st party refused to come back. 2nd party admitted regarding his Profession as
Contractor mentioned in para-20, but stated that due to financial crisis he is
unable to do his contractual work. 2nd party has denied that his income is 5 crore
per annum, 12 bighas land, tea garden and cultivate land. He has also denied
that he has one Mohendra Bolero which is given to Numiligar Refinary and from
that Rs. 1, 50,000/- per month is received and that 2nd party received Rs.
3,00,000/- her own. 2nd party has stated that the income of the vehicle which is
given to Numiligar Refinary is deposited in the account of the 1st party. 1st party
received Rs. 1,50,000/- from the vehicle and one Tata Magic vehicle though he
admitted that 1st party is residing in the house of her mother, but denied the fact
that para-21 regarding her dependency of father and mother for her
maintenance and the maintenance of the girl child and financial crisis she is
facing hardship, as she is working as a Computer Teacher and is owner of one
Tata Magic. 2nd party is willing to take back her to the house. 1st party has no
contractual work and has no property and for that reason he cannot pay Rs.
35,000/- for the maintenance of 1st party and Rs. 15,000/- for her children. 2nd
party is facing financial hardship with his son. Therefore, 2nd party thus prays to
pass necessary orders in the light of above facts and circumstances.
3] Based on the above pleadings of the parties the point which
arise for determination in this case are :-
8
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
1. Whether the 1st party is legally married wife of the second party?
2. Whether 2nd party refused or neglected to maintain 1st party?
3. Whether the 1st party without sufficient cause is living away from 2nd
party?
4. Whether the 2nd party has sufficient means to provide maintenance to
the 1st party?
5. Whether the 1st party is entitled to the relief of maintenance as prayed
for?
4] Evidence of 1st party is lead by PW1 herself. 2nd party adduced his
own evidence as DW1 and Sri Dijendra Hazarika as DW2.
5] I have heard both sides and also perused the materials
and evidence on record. My decision and reasons for the decision are as
follows:-
6] PW1, Smt. Annapurna Chutia deposed in her evidence that the 2nd
party is her husband. They were married on 21/04/2003, socially and they
started to live together and have two children – Aditya Raj Saikia, aged 13 and
Angelina Saikia, aged 5 years, out of the wedlock. Everything went well for about
one year of their marriage and after that she got a contractual job at Doyang
High School, Merapani and she started to work there. She used to travel from
Mariani and after she gave birth to her son, she started to live at Merapani. Her
husband and his family members had started to neglect her, immediately after
their marriage and the expenses for the birth of her son, was borne by her
father. Her husband had an illicit affair with other women and she had caught
her in a compromising position with Porismiti Chutia and he had maintained illicit
affairs with many women and he exchanged obscene photos and videos with
other women and if she objected, the 2nd party started to fight with her and he
told her that if she has to stay with him, she shall have to adjust with him. The
9
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
2nd party also assaulted her on many occasions and he used to keep a stick in the
bedroom, in order to beat her. She withstood all the harassment, hoping for the
2nd party to change himself and for the welfare of her kids. She informed
herfamily members and they asked her to keep patience and that things will
change and he even doubted her with other men, without any reason. The
harassment increased over a period of time. The 2nd party did not take any
responsibility of running the house and she had to take care of the kids alone.
She was continuously harassed by the 2nd party throughout the subsistence of
their conjugal life and he used to beat her under the influence of alcohol as well.
On 09/06/2018, the accused drank alcohol in the house and he beat her and he
called her family members and he told them that he shall divorce herand that if
anyone comes from her house he shall shoot them. The 2nd party also told that
he does not fear the police or Court. At about 02:00 A.M, at night, her brothers –
Ashim Chutia and Umakanta Chutia, came to her matrimonial house and she was
brought back to her paternal house, along with her daughter. Her son was kept
back forcefully by the 2nd party. She was chased out on many occasions. She
hasfiled a case at Golaghat Police Station under sections 498(A)/307 of IPC. She
has no income of her own. The 2nd party has not paid any maintenance to her or
her daughter. The 2nd party is a 2nd class contractor of PWD and he also owns
land and tea gardens and he earns Rs 5,00,000/- per month. The 2nd party owns
a Swift Dzire Car, Bolero Car and a Royal Enfield motorcycle. She has claimed
maintenance of Rs 50,000/- per month for her and her daughter. The 2nd party
had fraudulently obtained a loan in her name for buying a Tata Sumo Car.
During re-examination, PW1/Complainant stated that her husband works
as B Class Contractor under P.W.D. He has many movable and immovable
properties. Her husband has one Bolero vehicle,one Royal Enfield Classis and one
Maruti Swift VDI BS III. The Registration Certificates of which she brought before
the Court. Ext. 1 is the Registration Certificate of Bolero SLX 2WD7STRB54,Ext. 2
is the Registration Certificate of Royal Enfield Classic and Ext. 3 is the
10
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
Registration Certificate of Maruti Swift VDI BS III. Though, her husband is a rich
person he never gave any maintenance amount for her or her children. The
children are with her. She is facing severe hardship to maintain herself and her
children.
7] During cross-examination, PW1 stated that she had stayed with her
husband for about 15 years. Shedid not file any case at the Police Station, prior
to filing of the case at Golaghat Police Station, in June 2018. She denied the
suggestion that the 2nd party does not have any illicit affairs with other women
and that her family members did not pay for the medical expenses on the birth of
her children and that she has deposed falsely about being harassed and beaten
by the 2nd party and also about the 2nd party doubting her character and that
incidents as narrated by her did not happen and she has filed a false case against
the 2nd party. She hasnot mentioned about it, in her petition. Her son lives with
the 2nd party now. She denied the suggestion that she has not mentioned in her
petition that the 2nd party had beaten her and that he had chased her out on
many occasions. She denied the suggestion that she had left the house of the 2nd
party on her own, as she wanted him to separate from his parents and he had
refused and that she was not chased out by the 2nd party and that the incident as
narrated by her did not happen on 09/06/2018 and that she refused to return
with him.The 2nd party does not get any salary and only gets paid if he
undertakes contractual works. She does not know in whose name the tea estate
of the 2nd party is registered. She denied the suggestion that she own a Magic
Vehicle. The 2nd party’s father and elderly neighbour had gone to her house and
they had asked her to withdraw the case and not to take her back. She denied
the suggestion that the 2nd party does not have the income, as claimed by her.
During re-cross-examination, PW1/Complainant stated that she has not
deposited any license to show her husband is a BClass Contractor. When the
case was filed her son was with her husband. When she was examined she had
11
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
not deposited original Registration Certificate of the vehicles. In her deposition
(taken earlier) she has mentioned the number of vehicle though photo copies
were already annexed. According to her information, vehicles were still with 2nd
party and not sold out. She has not deposited any MVI of the vehicle. She denied
the suggestion that the vehicles are not still in possession of 2nd party and to
enhance maintenance she is deposing falsely.
8] DW1, Sri Bhaskar Jyoti Saikia is the 2nd party of this case who
deposed in his evidence that 1st party is his wife. He works as an Assistant of
Contractor. He used to get Rs. 200/- per day from Contractor. Monthly he get
200x 30= Rs. 6,000/- + Rs. 100/- per day for meal. About 16 years back he got
married with 1st party, as he stays with his parents. 1st party always instigate to
stay separately. As he had not agreed to the proposal, one day relatives of 1st
party came and took her from his house. 1st party is working as an Assistant
Teacher of Computer in Mahadeb Agarwala H.S. School. He tried to bring the 1st
party. His mother-father also tried. But on all occasion 1st party insulting them
drove them out of their house. He does not have any movable or immovable
property. 1st party also does not want to stay with him as his earning is low. 1st
party also refused to take care of his father when he was suffering from
dysentery. 1st party also threatened his father to file case against him. When he
was seriously ill, then 1st party never took any information and now also he is
suffering from many health problems. There is one magic vehicle, the owner is
his wife. Sumo vehicle owner is his wife. She got recently money from NRL
regarding the Sumo. She also have KVB of more than Rs. 1,60,000/- which are
all provided to her by him. Presently, he cannot give Rs. 50,000/- maintenance to
his wife. 1st party willingly went out of his house and he is ready to take her back
on that day also. He is patient of Sugar, pressure, etc.
9] During cross-examination, DW1 deposed that they have two children. The
age of his 1st child is 14 years. The age of 2nd child is 6 years. 1st child study is
12
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
English Medium School. The said School situated near his residence. The 2nd child
also used to go to school. Both the children are presently staying with their
mother. The school where his children used to study is Private School and huge
money is required for this study. He has not submitted any report regarding his
illness. He has not mentioned the name, address of the Contractor under which
he sued to work. He agreed that he has not stated the exact date when father
went to 1st party’s house. Regarding the working states of 1st party, he has not
submitted any proof. The original Registration Certificates of vehicles are with 1st
party and not with him. He denied the suggestion that he has totally stated
falsely that in the name of 1st party vehicles are there and incumbent in KBV
worth Rs. 1,60,000/- and the same is not written in the written statement. He is
the sole child of his father. Father resides with him. Father is retired School
Teacher. He cannot say whether his father retired or not. He does not know
whether his father is getting pension. He denied the suggestion that in a drunken
condition he used to assault his wife and getting no other alternative. He and his
wife left his house. He denied the suggestion that he also demanded dowry. He
denied the suggestion that he has illicit relationship with another woman. 1st
party filed a case in Furkating Police Station regarding assaulting her drunken
condition. He does not know the vehicle bearing No. AS-12H-1352. He denied the
suggestion that said vehicle is in his name and he got Rs. 1,50,000/- for that
vehicle by giving it on hire to Numiligar Refinary. He denied the suggestion that
he has another vehicle having No. AS-05D-3999. He denied the suggestion that
he has one Royal Enfield Bike bearing No. AS-05G-1400. He denied the
suggestion that he is a Second Class Contractor. He denied the suggestion that
he has worked a contract of Rs. 76,52,000/- under P.M.G.S.Y. from Jackson
Pathar to Rongbon Pothar. He denied the suggestion that Contractor uses
signboard mentioning his designation as Contractor. He agreed that in Annexure
5 his name is written, but that person is not him. Another person is his name. He
denied the suggestion that he is working as Contractor since five years and
getting more than Lakhs of Rupees. He has not given any maintenance money to
13
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
his wife or children. He denied the suggestion that he is a Second Class
Contractor and not an Assistant under a Contractor. He denied the suggestion
that he drove away his wife due to his illicit relationship with another woman. He
denied the suggestion that he has one Tea Garden and he has good money and
for maintenance of children and wife, he can give Rs. 50,000/- per month.
10] DW2, Sri Dijendra Hazarika deposed in his evidence that he knows
both the parties. The father-in-law of 1st party has informed him in Namghar that
his daughter-in-law has gone to her mother’s house on 1st day of Bhadra month.
On 3rd day of Bhadra, he, Mohendra Nath Barua and father-in-law of 1st party
went to the father’s house of 1st party along with Bubul Saikia and Budhuram
Bora. When they were discussing the matter of taking back 1st party then they
came to know 1st party is his uncle’s house as Uncle is sick. After long time, she
returned back and when they asked she told 2nd party assaulted her and for that
reason she came back. She refused to go back to her husband’s house. 2nd party
works under a Contractor. He cannot say what the income of 2nd party is. In the
house of 2nd party there is car, but he cannot say in whose name. 1st party is
working as a Teacher in School.
11] During cross-examination, DW2 deposed that he is resident of the village
where 2nd party resides. He has good relation with the family of 2nd party. This
distance of his house from the house of 2nd party will be around 300-400 metre.
He knows the father of 2nd party. He was Teacher in L.P. School (Govt.) He used
to get pension. He cannot say in which school the children of 2nd party was
studying. He denied the suggestion that he has falsely stated that the father-in-
law of 1st party has informed him in Namghar that his daughter-in-law has gone
to her mother’s house on 1st day of Bhadra month. Bhadra month of this year
though not mentioned in chief. He denied the suggestion that he has not gone to
the house of 1st party. He does not know whether 2nd party assaulted 1st party.
He denied the suggestion that he is deposing falsely that 2nd party is working
14
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
under a Contractor. He denied the suggestion that as he has good relation with
2nd party he is deposing falsely.
12] Point for determination No.1:-
PW1/1st party stated her date of marriage to be 21/04/2003 as per
Hindu Customs and Rites. In written statement 2nd party admitted his marriage
to 1st party and in his evidence as DW1 he admitted to have married the 1st
party. DW2 his witness also corroborated about the fact of marriage andstated
about consummation of marriage of parties as husband and wife. Since fact of
marriage between parties is an admitted position and admitted facts needs not
be prove, so it is found that 1st party is legally married wife of the 2nd party. This
point is therefore decided in favour of the first party.
13] Point for determination No. 2. & 3.
PW1in her evidence stated that PW1/1st party was tortured by the
2nd party. PW1 stated that 2nd party stated to demand money from her father so
he can submit tender being a Contractor. At the time of becoming ill and
delivery, 2nd party did not providehertreatment and money. Also from the
evidence of 1st party it appears that 2nd party used to torture her in drunken
condition. 1st partybeing unable to bear tortures came to father’s home. PW1
deposed that after one year of their marriage,she is residing at her mother’s
home and she has meager income. She is also not maintained by the 2nd party.
14] On the other hand, DW1 and DW2 both deposed that 1st party is a
Computer Teacher and PW1 went to her father’s house without any reason.
15] From the evidence of PW1, and that of DW1 and DW2, it appears
that preponderance of probabilities about alleged torture of first party by the
second party is more in favour of the 1st party. The second party though in his
evidence as DW1, and supported by DW2 about the illness and medical
15
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
treatment of 1st party, has not stated the same facts in his written statement.
The second party has stated this facts totally new in his evidence which are
missing in his written statement. Thus, he has brought up the facts which are
difficult to believe and digest. On the other hand, 1st party’s evidence is that she
was not given proper medical treatment and was tortured on several occasions
for demanding money from her and also driven out by the second party is found
to be more believable and trustworthy and therefore, both the issues are decided
in favour of the first party.
16] The marital life of PW1 and DW1 was long lived and evidence
proved beyond doubt that there was sufficient cause for the first party to remain
away from the second party, which caused, has been created by the second
party himself.
17] Point for determination No.4& 5:-
In view of the discussions in point No.1, 2 and 3, I am of the
opinion that the 1st party is entitled to the relief of maintenance as prayed for
vide her petition. About income of the second party, the first party stated that
the second party is a Contractor earning Rupees One Lakh per month. PW1 also
deposed that she needs only Rs. 50,000/- for her maintenance and her children
per month. On the other hand, DW1 and DW2 stated that the second party
works under a Contractor earning Rs. 200/- per day from Contractor and he get
monthly 200 x 30= Rs. 6,000/- + Rs. 100/- per day for meal. DW2 though
supported little bit DW1 but he failed to state about his monthly income in his
evidence. Moreover, PW1 has produced some Registration Card in the name of
2nd party which are exhibited as Ext.1, Ext. 2 and Ext. 3, which shows that
second party is owner of 2 vehicles and one costly motorcycle. Moreover, 1st
party is well acquainted with the income of the 2nd party, as though second party
refused to be owner of any vehicle, 1st party produced registration card of two
vehicle and one motorcycle, which are in the name of 2nd party. It is thus found
16
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
on weighing evidence of both sides that the existence of being Contractor is very
much true and that second party is working under Contractor that is also an
admitted position. PW1 has explained that the second party is the owner of the
vehicles which is denied by the second party but the Ext. 1, Ext. 2, Ext. 3 shows
that 2nd party wilfully denied ownership of vehicles to mislead Court.
18] From the above facts, I am of the opinion that the second party is
able bodied person, and from his earning he can also maintain the first party and
two children who is entitled to the benefit of maintenance under section 125
Cr.P.C.
19] Considering the status of both the parties, and the ability of second party
to earn as Teacher, I am therefore, of the opinion that the maintenance @ Rs.
5,000/- p.m for the maintenance of 1st party and Rs.10,000/- each (Rs.10,000x2)
p.m for the two children till they attain majority {Total =Rs. 25,000/- (Rs.
5,000+ Rs. 20,000)} will be sufficient as maintenance allowance to the first party
and her children.
O R D E R
In view of above discussions, the application of the first party is therefore
allowed on contest directing the second party to pay Rs.25,000/- (Rupees
Twenty Five Thousand) monthly to the first party for maintenance of first party
and her 2 children w.e.f. the date of filing of this application i.e. 24/07/2018
Let a copy of the judgment and order be given free of cost to the 1st
party.
Given under my hand and seal of this Court on 11thday of July, 2019
(Smt. Sutapa Bhusan)
Sub-Divisional Judicial Magistrate (M),
Titabar
17
Smt. Sutapa Bhusan, SDJM (M), Titabar Misc. Case No. 24/18
ANNEXURE.
WITNESSES FOR THE 1STPARTY :
P.W.1 ... Smt. Annapurna Chutia
WITNESSES FOR THE OPPOSITE PARTY/2ND PARTY:
DW.1 … Sri BhaskarJyotiSaikia
D.W.2 … Sri DijendraHazarika
DOCUMENTS ANNEXED & EXHIBITED BY THE 1ST PARTY:
Annexure 1 : Photocopy of the Ejahar dated 17.06.2018
Annexure 2 : 3 No. of Medical Documents
Annexure 3 : Photocopy of contract work signboard
Annexure 4 : Photocopy of the Income Tax Return
Annexure 5 : 3 numbers of Registration Certificates
Annexure 6 : Photocopy of Birth Certificate of minor son
Annexure 7 : Photocopy of the Birth Certificate of minor daughter.
Exhibit-1 : Registration Certificate of Bolero SLX 2WD7STRB54 vehicle
Exhibit-2 : Registration Certificate of Royal Enfield Classis
Exhibit-3 : Registration Certificate of Maruti Swift VDI BS III.
DOCUMENTS EXHIBITED BY THE 2ND PARTY:
NIL.
(Smt. Sutapa Bhusan)
Sub-Divisional Judicial Magistrate (M),
Titabar