Afzal Hussain v. Manjuwara Khatun

ORDER Date : 28.03.2024

Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. N. Ahmed, learned counsel for the respondent.

¶2This is an application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 against the impugned judgment and order dated 04.02.2022, passed by the learned Principal Judge, Family Court, Barpeta in FC (Crl.) Case No. 162/19, directing the petitioner/opposite party to pay an amount of Rs. 5,000/- per month towards the maintenance of the respondent.

¶3It is submitted by Mr. R. Ali, learned counsel for the petitioner, that the learned Principal Judge, Family Court, Barpeta has failed to appreciate the evidence on record in its true perspective and arrived at a wrong decision while granting award to the respondent and hence, the same is liable to be set aside and quashed. The learned Court below also did not consider the evidence of D.W.-1/petitioner that soon after the marriage, the respondent expressed her unwillingness to live a conjugal life with the petitioner as he has no source of income. The petitioner tried to bring back the respondent to his own house and to resume their conjugal life, but the father of the respondent did not allow her to return to her matrimonial house as he took Rs. 3,00,000/- from him with an assurance to provide job. The petitioner is still ready and willing to continue his marital life with the respondent who left her matrimonial house without any Page No.# 3/5 valid reason and hence, she is not entitled for maintenance under Section 125

(4) Cr.P.C.

¶4The learned counsel for the petitioner further raised the issue that at the time of passing the award, the learned Court below did not consider the fact that none of the parties filed their assets and liabilities as per the guideline of Hon'ble Supreme Court in case of Rajnesh Vs. Neha & Anr., reported in

(2021) 2 SCC 324, wherein it has been held that the party claiming maintenance should be required to file an affidavit of disclosure of assets and liabilities before the concerned Court as a mandatory requirement. But, here in the instant case, the respondent failed to submit her affidavit disclosing assets and liabilities and the order of maintenance has been passed without considering the assets and liabilities of the parties and the maintenance was awarded only considering the evidence of respondent.

¶5The learned counsel for the petitioner also relied on another decision of the Hon'ble Apex Court reported in 2023 SCC OnLine SC 1451 (Aditi Alias Mithi Vs. Jitesh Sharma), wherein also, it is has been held that all the Courts should mandatorily follow the guideline passed in the case of Rajnesh Vs. Neha & Anr. Accordingly, the learned counsel for the petitioner submitted that the matter may be remanded back to the concerned Court directing both the petitioner and the respondent to furnish the assets and liabilities before the learned Principal Judge, Family Court, Barpeta and on furnishing the affidavit on assets and liabilities, the Court may consider the matter afresh regarding the quantum of maintenance.

Page No.# 4/5

¶6In this context, Mr. N. Ahmed, learned counsel for the respondent, raised no objection and submitted that the respondent side is also ready to file her affidavit disclosing the assets and liabilities before the learned Principal Judge, Family Court, Barpeta.

¶7After hearing the submissions made by the learned counsels for both sides, it is seen that the impugned judgment and order dated 04.02.2022, has been passed by the learned Principal Judge, Family Court, Barpeta in FC (Crl.) Case No. 162/19, under Section 125 of the Cr.P.C., without considering the assets and liabilities of both the parties.

¶8The Hon'ble Apex Court in the case of Rajnesh (supra) has held as under: "64. In the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act 1984, must make an endeavour for settlement of the disputes. For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Section 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counsellors in every Family Court, which would help in the process of settlement.If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.

¶65The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement. On the basis of the pleadings filed by both parties and the Affidavits of Disclosure, the Court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage." Page No.# 5/5

¶9Accordingly, considering the view of the Hon'ble Apex Court as well as the submissions made by the learned counsels for both sides, the present petition stands allowed. The matter is remanded to the learned Principal Judge, Family Court, Barpeta, to decide afresh the quantum of maintenance considering the assets and liabilities to be furnished by the petitioner as well as the respondent. Both the parties are accordingly directed to appear before the learned Principal Judge, Family Court, Barpeta, with their respective affidavits disclosing the assets and liabilities on or before 09.04.2024 and the learned Court below will hear the matter afresh and will pass necessary order within 1 (one) month from date of this order. If any payment has already been made by the petitioner that may be adjusted accordingly.

¶10In terms of above, the present criminal petition stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010076652022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./164/2022 AFZAL HUSSAIN S/O LATE ABDUL AZIZ VILL- MARICHA P.S. BARPETA P.O. KAYAKUCHI DIST. BARPETA, ASSAM PIN-781352 VERSUS MANJUWARA KHATUN D/O MATINUR RAHMAN VILL- AMBARI (HOWLY) P.O. HOWLY P.S. HOWLY DIST. BARPETA, ASSAM PIN-781316 Advocate for the Petitioner : MR. R ALI Advocate for the Respondent : MR N AHMED Page No.# 2/5 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA