present : smt. sutapa bhusan, a.j.s. sub ...jorhatjudiciary.gov.in/jmt/2019/july/sdjmm/misc. case...

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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

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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

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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

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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

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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.

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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

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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 :-

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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