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Bipul Changmai vs Smt. Biku Moni Changmai on 29 April, 2020

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Case No. : Crl.Pet. 862/2019




Counsel for the petitioner : Mr. P.J. Saikia

Counsel for the respondent : Mr. U.K. Deka



1. Bipul Changmai, the husband has preferred this petition under Section 482 Cr.P.C. seeking
quashing of judgment dated 22.1.2019 passed by Additional Sessions Judge (FTC), Jorhat while
dealing with Criminal Revision No. 27/2018 affirming order dated 31.3.2018 passed by Chief
Judicial Magistrate, Jorhat in Misc. Case No. 27/2016 vide which the petitioner/husband has been
directed to pay a sum of Rs. 5000/- per month as maintenance to the respondent/wife under
Section 125 Cr.P.C.

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2. The Court proceedings have been conducted by means of creating a Virtual Court with the
help of technology, so as to maintain distance between the staff, Advocates and the Presiding

3. I have heard Mr. P.J. Saikia, learned counsel for the petitioner and Mr. U.K. Deka, learned
counsel for the respondent.

4. The skeleton of facts required to be considered for adjudicating the issue raised before the
Court are that the petitioner husband filed T.S.(D) Case No. 112/2015 titled ‘Bipul Changmai -vs-
Smt. Biku Moni Changmai’ under Section 13(1)(ia) of the Hindu Marriage Act, 1955, praying for
dissolution of marriage. The petition was allowed. The operative part of the judgment reads as
under :-

” In the legal parlance, cruelty is a cumulative effect of all acts and conduct of one
party which may have impact upon the other spouse. The edifice of marital life is
love and affection and mutual trust towards each other, lack of which makes life
miserable. No husband can tolerate such indecent behaviour of his wife and it
cannot be expected that he can run the marital life with his wife with such mental
stress and agony. As soon as the faith upon the wife has vanished from the heart
of the petitioner, he cannot be compelled to continue his marital life with the
respondent under the same roof. The respondent did not rebut the case of the
petitioner in spite of having knowledge of the allegation and therefore, it must be
held that the plaintiff has established his case. Having regard to the affair between
the parties, it appears to be necessary to dissolve the marriage between the
parties. Accordingly, prayer is allowed.

Marriage between the parties is dissolved by way of divorce.
Prepare a decree accordingly.”.

5. It further appears that the respondent wife filed Misc. Case No. 27/2016 praying for
maintenance under Section 125 Cr.P.C. On 23.3.2018, the husband did not appear, whereupon the
wife was allowed to lead ex parte evidence and record statements of P.W.1 and P.W.2. Order
dated 23.3.2018 reads as under:-

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“23/3/18- 1st party is present 2nd party is absent. Ld. Counsel vide Pet 992 for 2 nd
party informed that lawyer for the Opp. Party Gokul Pareek is absent and so his
absence may be condoned.

Heard. Perused case record.

It appears case is fixed for evidence since 30/8/17. 2nd party has remain
constantly absence after filing of W.S and his Ld. Counsel at Dibrugarh is also filing
petitions after petitions through Ld. Advocate S. Roy Showing absence.

Considering the conduct of Ld. Advocate and his client/2 nd party and pendency
of this Misc. Case since 2016, I deem it fit and proper to reject petition 992 today and
proceed ex-parte against the 2nd party today. Ex-parte Evidence of P.W.1 and P.W.2 are
recorded today.

Heard Ld. Counsel Fixing 31/3/18 for Ex-Parte order.”

6. It further appears that vide order dated 31.3.2018 while dealing with Misc. Case No.
27/2016 titled ‘Bikumoni Changmai -vs- Bipul Changmai’, the application under Section 125
Cr.P.C. was allowed. The husband was directed to pay Rs. 5000/- per month as maintenance
under Section 125 Cr.P.C.

7. The husband being aggrieved by order dated 23.3.2018 (supra) and order dated 31.3.2018
(supra) preferred one revision petition. The revision petition has been dismissed vide judgment
dated 22.01.2019 impugned by virtue of this petition.

8. The contention of learned counsel for the petitioner/husband is that although the
petitioner had earlier appeared on certain dates before the Magistrate and there was no cause to
record that he or his counsel were constantly absent, yet the wife was allowed to record the
statements of P.W.1 and P.W.2 ex parte. Without cross-examination of P.W. 1 and P.W.2, the true
facts could not be brought to the notice of the Court causing manifest injustice and prejudice to
the rights of the petitioner/husband.

It has been argued that even the respondent/wife and her lawyer did not appear on four
occasions, yet that aspect of the matter has not been considered while passing the order dated
23.3.2018 (supra).

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9. In context of order dated 31.3.2018, it has been argued that in terms of sub-Section (4) of
Section 125 Cr.P.C., the respondent/wife is not entitled to any maintenance. Sub-Section (4) of
Section 125 Cr.P.C. specifically inheres that no wife shall be entitled to receive maintenance, if
without any sufficient reason she refuses to live with her husband.

10. It has also been argued that in the order dated 31.3.2018 the husband has been held to
be cruel, whereas the District Judge while dealing with the divorce petition has held the wife to
be cruel. Such contradictory finding is not permissible, particularly when the order of the District
Judge in the divorce petition was rendered on 7.11.2016, whereas the application under Section
125 Cr.P.C. came to be decided much subsequently on 31.3.2018. It has been contended that the
Court dealing with the application under Section 125 Cr.P.C. was bound to follow the findings
recorded by the Court dealing with the divorce petition.

11. I have considered the contentions advanced by learned counsel for the petitioner.

12. So far as order dated 23.3.2018 above extracted is concerned, the impugned order
rendered by the revisional court deals with the issue in extenso. In Para- 5 of the impugned order,
the revisional court has noticed specifically that the husband or his counsel remained absent on
3.7.2017, 8.8.2017, 30.8.2017, 7.11.2017, 1.12.2017, 9.12.2017, 18.2.2018 and 23.3.2018.

Having considered the contents of Para- 5 of the impugned order, this Court is in no doubt
that passing of order dated 23.3.2018 (supra) was justified. The petitioner/husband cannot take
refuge of the fact that even the wife or her counsel remained absent on four dates. Conduct of
the party is required to be considered. Having gone through the zimni orders placed on record,
even this Court is convinced that the petitioner/husband immediately preceding 23.3.2018
remained absent from the Court. In such circumstance, I find no error in passing of order dated
23.3.2018 by Chief Judicial Magistrate, Jorhat.

13. In so far as order dated 31.3.2018 is concerned, order dated 31.3.2018 has been passed
while considering the parameters required to be applied under Section 125 Cr.P.C., however, while
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dealing with the divorce suit the provisions under the Hindu Marriage Act, 1955 were required to
be taken into account. Both the orders have been passed in different jurisdiction, on the basis of
different materials, pleadings and evidences and in context of different laws. In such peculiar
facts and circumstances of the case, it cannot be held that the Court under Section 125 Cr.P.C.
was bound by the findings recorded in the divorce suit.

In the divorce suit, the wife was proceeded ex-parte. The decree of divorce has not been
challenged by her in appeal, and has been accepted. In the proceedings under Section 125 Cr.P.C.
the evidence brought by the wife side by way of statements of P.W. 1 and P.W.2 has been allowed
to be recorded ex parte i.e. without cross-examination of witnesses by the husband.

I am also of the considered view that standard of proof required in a proceeding under
Section 13 of the Hindu Marriage Act, 1955, and Section 125 Cr.P.C. are entirely different. Civil
cases are decided on the basis of preponderance of evidence. The parameters provided under
Section 125 Cr.P.C., however are required to be considered while assessing maintenance payable
to the wife. Thus, in law finding recorded in the divorce suit cannot be held to be binding in the
case under Section 125 Cr.P.C.

14. So far as contention of learned counsel for the petitioner to the effect that contrary
findings have been recorded in regard to cruel conduct of the wife, the provisions of Section 125
Cr.P.C. do not inhere, as a pre-condition to payment of maintenance, that wife was cruel towards
the husband and, therefore, husband would not be required to pay maintenance. In such
circumstance also the contention of learned counsel for the petitioner is not acceptable.

15. I have also taken into account the amount of maintenance awarded under Section 125
Cr.P.C. vide the impugned order.

It appears that the petitioner/husband is a teacher serving in a Government school and,
therefore, would be drawing more than Rs. 30,000/- per month as salary. The respondent/wife
demanded a sum of Rs. 10,000/- per month as maintenance. Sum of Rs. 5000/-, however, has
been awarded. I find the amount of maintenance awarded by the Chief Judicial Magistrate, Jorhat
to be reasonable and in context of salary of the husband. In substance therefore, I find no error
in coming to the conclusion that Rs. 5,000/- per month would be a reasonable maintenance.

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16. So far as the legal issue is concerned, sub-Section (4) of Section 125 Cr.P.C. reads as

“125. Order for maintenance of wives, children and parents.–

(1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

4. No wife shall be entitled to receive an [allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the case may be,] from her
husband under this section if she is living in adultery, or if, without any sufficient
reason, she refuses to live with her husband, or if they are living separately by mutual

17. The provision, however, is required to be seen in context of the judgment rendered by the
District Judge in the divorce suit.

Sections 13(1)(ia) and 13(ib) of the Hindu Marriage Act, 1955 read as under:-

“13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the husband or the
wife, be dissolved by a decree of divorce on the ground that the other party-

(i) xxxxxxxxxxxxxxxxxxxxxxx
(ia) has, after the solemnization of the marriage, treated the petitioner with
cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition; or

18. On perusal of the statutory provisions above extracted, it becomes evident that a suit may
be filed either on the ground of cruelty or desertion or on both the grounds. Cruelty and desertion
have been given as separate grounds under Section 13 of the Hindu Marriage Act, 1955.

It is the plea of learned counsel for the petitioner/husband that divorce has been granted
also on the ground of desertion.

However, on going through the judgment vide which divorce has been granted, I find that
the petition for divorce itself was filed only on the ground of cruelty under Section 13(1)(ia) of the
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Hindu Marriage Act. In such circumstance, learned counsel for the petitioner/husband is not
entitled to plead and argue that divorce was granted also on the ground of desertion.

This finding is further fortified from the fact that neither any specific issue was framed in
regard to desertion, nor in the operative part of the judgment dated 7.11.2016 extracted above, a
finding in regard to desertion has been recorded.

19. For all the reasons recorded above, I find no reason in facts or in law to allow this petition.

20. Consequently, the petition is dismissed, however, with no order as to costs.

21. Let a copy of this order be provided under the signature of the Court Master.


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