in the court of judicial magistrate first class, …golaghatjudiciary.gov.in/jmnt/2018/june/misc...

MISC CASE No : 44/ 2017

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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,

DHANSIRI, SARUPATHA


U/S 125 of Cr.P.C.

Nomita Bora

.....Petitioner/First Party

vs

Mintu Bora

....Opposite Party/2nd Party

PRESENT: - SIDDHARTHA BORA, A.J.S.

Judicial Magistrate First Class

Dhansiri Sub-Division, Sarupathar, Golaghat.

ADVOCATE FOR THE FIRST PARTY : Daisy Handique

ADVOCATE FOR THE SECOND PARTY : Priyakshi Kakati

EVIDENCE RECORDED ON : 13.03.18, 27.03.18, 10.04.18, 11.05.18

ARGUMENTS HEARD ON : 24.05.2018

FINAL ORDER PASSED ON : 06.06.2018


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FINAL ORDER -

1. The instant case has emanated from an application filed under S. 125 of

Criminal Procedure Code by the petitioner/first party, Smti Nomita Bora against the

opposite party, Sri Mintu Borah.

VERSION OF THE FIRST PARTY:

2. The petitioner/ first party filed an application under section 125 of the Criminal

Procedure Code stating inter alia that on 7th May, 2003 the marriage in between first

party and second party took place socially. And after the marriage the first party was

living with the second party at the second party’s house. They were living happily

almost one year but after the birth of the first child the second party along with his

mother started to torture her physically and mentally on the pretext of demanding

dowry. The physical and mental torture caused to the first party by the second party

compel her to live the second party’s house on 12th of Bohag month in the last year.

Having no alternative the first party had to come to her parent’s house at Tengahola

for shelter and now is staying there. Even after the first party’s leaving from the

second party’s house, the second party used to torture the first party mentally over

phone. This caused the first party to lodge an FIR at Sarupathar Police Station

against the accused person on 24.11.2016.

3. Knowing that the first party had lodged an FIR against the second party, the

second party admitted his guilt. There took place an agreement in between both the

parties wherein the second party promised not to torture the first party physically

and mentally, provide her all the costs of fooding, clothing and medical treatment

and also promised to keep the first party in a peaceful environment. The agreement

took place on 06.02.2017 in the presence of witnesses and then was submitted at

the police station. The Investigation Officer on the basis of an agreement submitted

a final report in connection with the ejahar lodged by the first party at the police

station.


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4. Knowing that the final report was submitted in connection with the case

lodged against the second party, the second party again started to torture her

physically and mentally. On 13.05.2017 the second party had arrived at the house of

first party. At the time of departure the second party demanded one lakh rupees

from father of the first party. But the first party could not provide it to the second

party and, therefore, the second party assaulted the first party and left the first party

at her parent’s house. He even threatened the first party not to go to his house

without the money he demanded and if she did so, she has to face the music at his

house while she would go to his house.

5. The second party did not take any information of the first party from the day he

left the first party’s house till today. And even did not provide any maintenance to

her.

6. The first party does not have any income source and the financial condition of

his father is also poor. The first party has to been living a very hardship life at his

parent’s house.

7. On the other hand, the second party is very healthy man and has two bigha

house land along with 50 nos. of trees of betel-nuts. The second party earns rupees

30/40 thousand annually by selling betel-nuts. Besides he has two big fisheries

covering two katha lands. He earns around 30/40 thousand annually be selling fish

from that fisheries. The second party has also pig farm and form that pig farms he

earns annually 60/70 thousand. The second party has tea gardens in 4 bigha lands

and from that tea gardens he earns 20 thousand per months and two lakh forty

thousand annually. Besides the second party has a big grocery shops a boiler chicken

shop and a wine shop. From the source of the Grocery shop and from other business

he earns 40/50 thousand per month. All to tell the second party earns almost eight

lakh forty six thousand from all the sources.

8. Therefore, the first party prays before this court to provide her ten thousand

allowance per month from the second party.

VERSION OF THE OPPOSITE PARTY

9. The opposite Party after receiving summons appeared and filed written

objection contending that the allegation brought against the second party in the

complaint is false and baseless and this case is filed against the second party only to


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get maintenance illegally from the second party. The second party averred in his

written statement that all allegation against the second party are not true except the

marriage in between them in the year 2003.

10. The second party admitted that the first party had given birth of a boy child

namely Abinash Bora from his side and the age of the child is 13 years old, now

staying with the second party.

11. The second party also categorically denied the allegation that on 12th of Bohag

in the year 2017 he droved the first party on the pretext of dowry is totally false. In

fact the first party, without asking her matrimonial family, herself used to go out

from his house to her paternal house at Tengahula. The fact that he admitted his

guilt at the police station is false but the first party on his own will withdrew the case

lodged at Sarupathar Police Station.

12. He denied categorically the fact that the second party assaulted the first party

when the first party did not fulfil his demand for Rs.1,00,000/- money on

13.05.2017 and then left her at her home . He also denied the fact that he did not

take any information of the first party and also did not visit her parental home when

he left her at her parental house. Instead he called over phone the first party many

times but the first party’s family did not allow the first party to talk with him.

13. He also categorically denied that he has 2 bigha house land, 50 no.s of betle-

nuts tree and earns Rs. 30 to 40 thousands rupees by selling beetle-nuts annually,

has two big fisheries in 2 Katha lands and earns Rs, 30/40 thousands from selling

fishes, has one pig farm and earns RS. 60/70 thousands from selling pigs and has

one tea garden in 4 bigha land and from there earns Rs, 2,40,000/- annually (per

month Rs.20,000/- ) – all total Rs. 8,46,000/- he earns annually from all these

sources.

14. So, the first party is not fit to get maintenance from the second party. He

therefore prayed to dismiss the petition.

TRIAL

15. During the trial, the first party adduced 3 witnesses PW1 to PW3 and

respondent cross-examined them. On the other hand, 2nd party had adduced one

witness DW1.


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I have heard the intensive arguments put forward by the learned counsels

appearing on behalf of both the parties.

POINTS FOR DETERMINATION

16. The following are the points for determination :

1. Whether the petitioner is the person belongs to the category as defined

u/s.125(1)(a) Cr.P.C. ?

2. Whether the petitioner is compelled to leave her matrimonial house and

whether she is refused to maintain by the second party ?

3. Whether the second party has the sufficient means to maintain the first party as

prayed for ?

4. Whether the petitioner is entitled to get any maintenance as claimed for and if,

so, what amount of maintenance she is to be entitled ?

DISCUSSION, DECISION AND REASONS THEREOF :

EVIDENCE OF PROSECUTION :

17. Evidence of PW1, Nomita Bora:

This case was filed against her husband Mintu Borah on 07.05.2003. Her

marriage was taken place with Mintu Borah socially. After the marriage she was

staying with her husband at husband’s house. On 18th September, 2004 a baby boy


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was born named as Abhinash Bora. After the birth of the boy her mother-in-law and

husband used to torture her on the pretext of dowry. In the year 2016 on 3 Bohag,

her mother-in-law tried to burn her by pouring kerosene and her husband tired to

slash her with a dao. But she could save herself after locking the door of her room.

In the year 2016, on 12 Bohag she had to leave her husband’s house went she could

not bear the torture by her husband. But even after her departure from her

husband’s house, her husband used to threatened her to kill or slash on the pretext

of demanding money from her home. On 24th November, 2016 her husband

threatened her over phone. It is then she lodged FIR against her husband and

mother-in-law at Sarupathar Police Station on 24.09.2016. After the ejahar her

husband came to her parental house and then asked pardon not to assault her in

future and, therefore, an agreement was taken place in between both the parties.

On the basis of that agreement the case lodged at Sarupathar Police Station was

settled amicably on 06.02.2017. On the basis of the agreement her husband again

took her to his home. On 12.05.2017 she along with her husband came to her

parental house for Bihu. And on that knowing that in the case lodged by her, the

police submitted final report before the Court. Her husband assaulted her very badly

in the night after having intoxicated with alcohol. Her family member then save her.

When her family member requested her husband it is then her husband stopped to

assault her. But on the morning of the following day while she along with her

husband whereabout to go to her husband house, her husband then demanded

rupees one lakh and if she could meet her demand, her husband would take her to

his house. When she could not provide the demanded money her husband left her at

her parental house. On 12.05.2017 while her husband was assaulting her he told

before every one that he would burn her after taking her to his house. Her husband

then threatened her over phone and do not provide even a single penny for her

maintenance. She does not have any income source. Her husband deals in business.

He has two bigha house land and in his garden there are fifty numbers of betel-nuts

trees and he earns around 30 to 40 thousand from this source. He has two fisheries

in two katha land and by selling fish he earns around 30 to 40 thousand annually. He

has a pig farm and from pig farm he earns annually more than lakhs. He has one tea

garden in four bigha land and form tea garden earns 20 to 30 thousand monthly. He

has one grocery shop along with boiler chicken. He also deals in alcohol (sulaimod).

He earns almost 40 to 50 thousands from this sources and accordingly 4 to 7 laksh


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annually. She prays rupees ten thousand monthly for maintenance allowance. The

husband even change his sim number because she used to talk with her child.

Ext. 1(1), Ext 1(2), Ext. 1(3)and Ext. 1(4) is the complaint petition she filed

before this court.

From Ext. 1(1)(a) and Ext. 1(2)(b), Ext. 1(3)(c), Ext. 1(4)(d) in Ext. 1(1) to

Ext. 1(4)- are her signatures.

All the paragraphs except one and two in the written statement submitted by

the second party are all false.

During the time of cross-examination, she testified that it’s not a fact

that on 3 Bohag 2016, her mother-in-law and husband tired to kill her by pouring

kerosene oil is false. It’s not a fact that on 12 Bohag 2016 she on her won will came

to her parent’s house after leaving her husband’s house is false. It’s not a fact that

her husband threatened her over phone to kill her is false. It’s not a fact that on

24.11.2016 she was threatened over phone for which she lodged an FIR is false. It’s

not a fact that on 13.05.2017 her husband demanded one lakh rupees, from her

parents at the time of leaving her home is false. It’s not a fact that the accused

wanted to take her along with him and she did not want to go with him. Her child is

staying with his father. It’s not a fact that the accused has fifty numbers of betel-

nuts trees and from there he does not earns rupees 30 thousand to forty thousand.

She does not submit any document as regards to the landed property with betel-

nuts. It’s not a fact that he does not have pig farm and he does not earns 30

thousand to 40 thousand from there. It’s not a fact that he does not have a tea

garden and from tea garden he does not earns rupees one lakh per year. It’s not a

fact that he does not have a grocery shop and along with the grocery shop he does

not sell meats as well. It’s not a fact that he does not have a wine shop (sulaimod).

It’s not a fact that he does not earn rupees eight lakhs in a year. It’s not a fact that

her husband does not work as a daily wage labour. His mother is old and the middle

son (?) lives along with his father.


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18. Evidence of PW2, Smti. Amiya Saikia:

Both parties are husband and wife. Their marriage took place socially on the

month of Bohag in the year 2003. After the marriage the first party first living with

her husband they have a fourteen years old boy. After the marriage they were living

happily but the first party was tortured on the pretext of dowry and so the first party

returned to her parental house. It was told by the first party to her. It is then, they

persuaded her to live with her husband again and accordingly took her to her

husband’s house. But on the month of Bohar in the year 2016 she again came to her

parent’s house due to assault by husband. Thereafter the first party lodge an FIR

against the second party but when her husband after coming to her house asked

pardon and promised not to assault her again the case was settled at the police

station itself. After that the first party was taken to her husband’s house. On Bohag

month in the year 2017 both parties came to the parents of the first party’s house

for enjoying Bihu. But their took place a quarrel in between the first party and

second party at the house of first party parent’s house. The second party left her at

her partent’s house when she did not agree with the demand of the second party to

take money from her parents. Since then the first party is living with her parents and

the second party did not take any information or providing any support to the first

party. The first party does not have any income source. The second party has a

garden of two bigha land with betel-nut. He has two fisheries and one pig farm. He

has one tea garden in four bigha land. She saw these properties when she visited

the second party’s house. The second party has a big grocery shop. Along with the

grocery shop he has a shop of boiler chicken and wine shop. Form these sources he

earns many incomes.

During the time of cross-examination, he stated that it’s not a fact that the

second party did not assault first party on the pretext of dowry. It’s not a fact that

on the month of Bohag in the year 2016 the first party did not come to her parent’s

house. She does not see by her own eyes the assault to the first party by second

party. In the year 2017 on the month of Bohag while both parties came to the first

party parent’s house, she does not see the assault by second party to the first party

at that time. It was told by the family of first party. It’s not a fact that at that time

the second party did not demand rupees one lakh. This fact is told to her by Nomita


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Bora and other family members. It’s not a fact that the second party does not have

two bigha land and a tea garden in four bigha land. She could not submit any

document as regard to the property of the second party. The child of the first party

is living with the second party, his father. She knows that the second party has an

old mother and she lives with the second party’s elder brother. Nomita Bora is her

niece. It’s not a fact that she therefore deposed falsely. It’s not a fact that the

second party lives by daily wage labour.

19. Evidence of PW3, Santanu Saikia:

The first party is his elder sister and the second party is his brother-in-

law. The marriage in between them took place by performing social rites and

customs on 7th May, 2003. After the marriage both were living as husband

and wife at the second party’s house. A baby boy was born from their

conjugal life and now he is of 13 years old age. But after the birth of the

child. The second party started torture the first party on the pretext of

demanding dowry and money. On the 12th month of Bohag in the year 2016,

the first was compelled to leave her husband’s house when the mother of the

first party tried to burn her. Even after leaving her husband’s house the

second party tortured her by calling her over phone. And it is for this reasons

his elder sister lodge an ejahar against the second party at Sarupathar Police

Station on 24-11-2016. After the ejahar the second party arrived at his house

and asked pardon to his elder sister promising not to assault her in future.

Accordingly, an agreement was taken place in between them whereby the

second party promised not to assault and to keep the first party in a peaceful

manner, and the agreement was notarized. On 06.02.2017 the agreement

was taken place in between both the parties. After the agreement her elder

sister was taken to his brother-in-laws house. But the second party again

started to torture her. On 12 Bohag 2017 both parties arrived at his house for

Bohag Bihu. The second party then could come to know about the submission

of final report before the Court by the police. Knowing this the second party


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on the very day in night assaulted the first party. On 13th Bohag in they yea

2017 when her sister and bother-in-law where about to go to the second

party house, his brother-in-law demanded rupees one lakh form the family

members of the first party, when the first party reply negatively the second

party assaulted the first party at the first party’s house itself and then left to

his house without taking elder sister. From then on the second party did not

take any information or visited to the first party’s house and also did not

provide any support to the first party. The first party does not have any

income source. The second party has two bigha house land wherein about 50

betel-nut trees are there. The second party has two fisheries in two katha

land. The second party has also pig farm on the bank of the fishery. Second

party has four bigha tea garden and one grocery shop near Meleng High

School at Jorhat. He also deals in alcohol and sells boiler chicken, therefore,

the shop is very big in size wherein almost four/five labours are in the shop.

From all these sources the second party earns almost eight to nine lakhs per

year.

During the time of cross-examination, he testified that it’s not a fact

that the second party did not assault the first party after a birth of child. It’s

not a fact that the accused person along with his mother on 12th Bohag in the

year 2016 did not try to assault and burn the first party. It’s not a fact that

after the agreement when the first party went to the second party’s house,

the second party did not assault her. It’s not a fact that it is false that on 12th

Bohag in the year 2017 when both parties arrived at his house for Bohag

Bihu, the second party assaulted the first party. It’s not a fact that on the

next day when the both parties were about to go to second party house, the

second party did not demand rupees one lakh from first party. They boy child

is staying with his father. It’s not a fact that the second party does not have

two bigha house land and there are 50 numbers of betel-nut trees in the

house garden. It’s not false that the second party has big fisheries in two

katha land. It’s not a fact that the second party does not have pig farm and

tea garden. It’s not a fact that the second party has not a big grocery shop


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and a boiler chicken is being sold from there. It’s not a fact that the second

party does not have earned rupees eight to nine lakh annually. It’s not a fact

that the second party earns by daily wage labour. It’s not a fact that he

deposed falsely because the first party is his elder sister.

Evidence by defence side.

20. Evidence of D.W. 1, Mintu Borah

On 7th May, 2003 the marriage in between the first party and the second

party took place by performing social rites and customs. At first, both were living a

happy family life. They have one 14 years old boy, who is living with him and the

child name is Abhinash Bora, reading in class VIII, in government school. He did not

commit any physical and mental torture to the second party. The first party herself

went out many times from his house and on June, 2017 she lefts forever his house.

After that first party lodged an FIR and then agreement was taken place in between

them, by which the second party promised not to torture physically to the first party.

The case was later on settled amicably when he signed in the agreement.

Thereafter, on 11th March, 2017 the second party along with his child went to the

first party’s house to fetch her to his house and accordingly she came along with

them to his house. But after staying one month along with them she again lefts his

house. He did not ask for or demanded rupees one lakh from the first party as stated

by first party. He also does not have 50 numbers of betel-nut trees in two bigha land

as stated by first party. Similarly, he does not have also big fisheries although he

has a small one. He does not have any pig farm. He does not have grocery shop,

tea garden and boiler farm. Now, he earns his livelihood by doing daily wage labour

assisting Raj Mistri ( a mason). He does not have any agriculture land.

During the time of cross-examination, he testified that the first party lives at

present with her parents. It’s not a fact that after the birth of the child the second

party assaulted physically and mentally the first party on the pretext of dowry. It’s

not a fact that the first party was compelled to leave his house on 12th Bohag in the

year 2016 as a result of torture by him. It’s not a fact that after the departure from

his house he tortured the first party by threatening over phone. And it’s not a fact


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that for this cause the first party had to lodge an ejahar in Sarupathar police station

on 24.11.2016 under 498A of IPC. It’s not a fact that on 13.05.2017 the first party

and the second party both went to the first party’s house for enjoying Bihu. It’s not a

fact that he again tortured her when the police submitted final report in connection

with the case lodged by the first party. It’s not a fact that he assaulted her when the

first party did not provide him from his family the demanded money of rupees one

lakh at the time of departure to his house and left her at her parent’s house.

Thereafter, he did not take any information of the first party or visited to her house

or provide money for her support. The first party does not have any income source.

It’s not a fact that he has two bigha house land wherein there are 50 numbers of

betel-nut trees. It’s not a fact that he earns rupees thirty thousand to forty thousand

annually be selling betel-nuts. It’s not a fact that he has fish in his fishery and he

earns rupees thirty thousand to forty thousand annually from his fishery by rearing

fishes. It’s not a fact that he has a pig farm and he earns rupees sixty thousand to

seventy thousand annually from there. It’s a fact that he does not have pig farm,

fishery and fishes in fishery. It’s not a fact that he has big grocery shop and along

with that shop he also has boiler farm. It’s not a fact that four bigha tea garden

belongs to him not to his elder brother and from there he earns rupees twenty

thousand per month. It’s not a fact that he is not a labour who assist Raj Mistri

(mason) It’s not a fact that he deposed falsely because he has to provide

maintenance allowance to his wife.

APPRECIATION OF EVIDENCE

21. Now before going to appreciate evidence, it is better to have a look into

the ingredients of section 125 of Cr.P.C. To invoke the section 125 Cr.P.C. the

following conditions must be satisfied-

1. The petitioner must be a person under any of the categories mentioned

in the section 125 Cr.P.C.


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2. The petitioner is forced to leave her husband house and also refused to

maintain her.

3. The petitioner is unable to maintain herself

4. The opposite party must have sufficient means to maintain the petitioner

22. Having considered the entire evidence on record mentioned above, it is

evident that the first party is the wife of the second party. The second party

admitted itself it in his written statement and since admitted fact need not be proved

under section 58 of the Indian Evidence Act, so, the first condition that the first

party is a person in the category as mentioned in the section 125(1)(a) of

Cr.P.C. is satisfied. Therefore, the point for determination no.1 is decided

positive.

23. Now let us see whether the petitioner is forced to leave her

husband „s house and she is refused to maintain by her husband/second

party. The allegation against the second party as averred in the complaint ,

hereafter referred to as Ext.1, in regard to the torture physically and mentally by

the second party along with his mother after the birth of the first child on the

pretext of demanding dowry that compelled her to live the second party’s house on

12th of Bohag month in the last year, even after the leaving of the husband’s house

the second party used to torture mentally the first party over phone calling as a

result of which an FIR was lodged on 24.11.16 by the first party is supported by the

evidence adduced by PW1 before this court. Further the averment made in the Ext.1

that after an agreement in between the first party and the second party on

06.02.2017 by which the second party admitted his guilt of torture and then

promised not to torture her in future as a result of which the first party settled the

matter with the second party amicably at the police station itself and the police

submitted a final report in connection with the ejahar , the second party again

assaulted the first party in the presence of her family members when both of them

came to the first party’s parental house at the time of Bohag Bihu, for the cause of


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not fulfilling the second’s party demand for Rs.1,00,000/- money is also supported

by the evidence adduced by PW1. Even the defence side could not rebut a single

evidence adduced by the first party in regard to the above mentioned evidences. I

have also gone through the evidence adduced by PW2, aunt of the first party and

PW3, younger brother of the first party. After a careful and meticulous scrutiny of

the evidence adduced by PW2 and PW3, I do not find any discrepancies or

contradiction of their evidence as regards to the physical and mental torture caused

to the first party by the second party. All the suggestions made before PW2 and

PW3 by the defence side as regards to the physical and mental torture at the time

of cross-examination are a total denial by PW2 and PW3. Their evidence is found

consistent and has a ring of truth even .

24. Now, after going through the written statement and the evidence adduced

by DW1, who is the second party himself, it appears that the second party admitted

that there took place an agreement in between the first party and the second party

after lodging of FIR by the first party and the second party also admitted that he

signed in the agreement. A presumption can be made on admission by the second

party that there took place some cruelty to the first party or some physical and

mental torture to the first party on the pretext of demanding dowry or money by

the second party from the first party, which compelled the first party to leave her

husband’s house even after having a family life of more than 15 years or even after

she has a 14 years old child. It’s a general prudence that a woman never leaves her

own child for the cause of sporadic ill treatment or quarrel by the husband. The

nature gives her immense capability or can be said a god-gifted trait of a mother to

bear such little torment for the love of her to child or to the husband. When a

woman is compelled to leave her matrimonial house along with her own child after a

long period of living together with her matrimonial family, a presumption can be

made that there took place some cruelty or physical or mental torture to the first

party by the second party, when the defence side did not raise any other grounds for

her leaving from the house of the second party’s house. It is evident that the first

party was compelled by the second party to leave her matrimonial house. Therefore,

the second ingredient that the second party forced the first party to leave her

matrimonial house is satisfied.


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25. Now, to check whether the second party refused the first party to

maintain her, I have again carefully gone through the evidence adduced by the

prosecution witnesses. It appears that the allegation of the first party that the

second party did not visit to the first party’s house or did not call her over phone

and also did not provide any support to the first party from the day when the second

party last left the first party at first party’s house is supported by the evidence

adduced by PW1, PW2 and PW3. This fact is also admitted by DW1 who is the

second party itself at his cross-examination. Since as per the section 58 of the

Indian Evidence Act, the admitted facts need not be proved, so, it is established

that the second party did not visit the house of the first party or call her over

phone and also did not provide support to her. Therefore, it is proved that the

second party refused to maintain the first party .

Thus, from the discussion made above and considering all the

aforementioned aspects, it is proved that the second party tortured the first party

physically and mentally and thereby, the first party is forced to leave her husband’s

house and secondly, she is also refused to maintain by the second party.

Therefore, the points for determination no.2 is decided positively against

the 2nd party.

26. Now, to determine the point no.4 that is Whether the first party is unable

of maintain herself, I have gone through the entire evidence on records and from

the evidence adduced by PW1,PW2 and PW3 along with the complaint filed by the

first party, it is evident that the first party does not have any income source of her

own and She is now living at her maternal house with great hardship. The fact that

the first party does not have any income source is also admitted by the second party

at the time of cross-examination of the second party by the first party.

Thus, from the above discussion it is established that the first party is unable

to maintain herself.

27. Now, let us see whether the second party has the sufficient means to

maintain the first party as prayed for. As per the Ext.1, the complaint petition and

the evidence adduced by PW1, the second party has two bigha house land along


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with 50 no.s of betel-nut trees and he earns 30/40 thousands annually by selling

betel-nuts, two big fisheries in two katha lands and by selling fisheries he earns

30/40 thousands annually, two pig farms and from it he earns 60/70 thousands

annually, a tea gardens in 4 bigha lands and from it he earns two lakh forty

thousand annually and at last he has a big grocery shop and along with it a boiler

chicken shop and a wine shop and he earns forty fifty thousand from there. The

evidence adduced by PW1 also reveals the same. I do not find contradiction in this

regards. The second party also could not rebut the evidence adduced by PW1 in

her cross-examination. A presumption can be made that since the first party had

been living with the second party for almost 14 years, therefore she might know the

properties or the income from the different sources of the husband or the second

party as stated by her in evidence. Therefore, the evidence adduced by PW1

appears to be trustworthy. But to check the credibility of the evidence adduced by

PW1, there is a need of corroboration of the evidence adduced by PW1 and the

Ext.1.

28. From perusal of the evidence adduced by PW2, it transpires that PW2 also

stated the same thing what the first party adduced at her evidence. I also do not

find any variance of the evidence adduced by PW2. Although the first party is the

niece of PW2, what she adduced before this court is not from her hearsay evidence

but by his own direct evidence what she saw while she visited to the second party’s

house. It is not possible to say the exact numbers of betel-nut trees in one’s house

garden or the exact income from different income sources of a person. But one can

have an idea as to the monthly or yearly income by seeing one’s different assets .

Therefore, from the evidence adduced by PW1 and PW2 as regards to the different

assets of the second party, therefore, a presumption can be made that the second

party has other source of income other than what he claims to be a daily wage

labour.

29. As regards to the contention of the second party’s engaged counsel that

PW2 could not submit any documents as regards to the list of incomes from different

source of assets, it can be positively asserted that a documents as to someone’s

properties can not be easily accessed from the concerned office of registry.


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Because, to submit a land document like Jamabandi copy containing Dag. No. and

Patta No. , an applicant must furnish the complete details of the land for which

copy of Jamabandi is sought by him/her such as Patta No. Dag No. and name of

the Revenue Village and Mauza where the land is situated in the prescribed format.

30. PW3 , Santanu Saikia is the younger brother of the first party. What he

adduced evidence as regards to the different assets of the second party as said by

PW1 and PW2 in their evidence, PW3 also adduced the same without any

discrepancies. The second party could not also impeach the credibility of the

evidence adduced by PW3. Therefore, the evidence adduced by PW3 appears to be

reliable.

31. As to the contention of the Ld. counsel appearing for the second party that

the second party is ready to bring the wife, I have gone through the entire evidence

adduced by DW1 and the written statement submitted by the second party. But after

going through carefully, it appears that nowhere the second party stated that the

second party is willing or ready to bring the first party from her parental house.

Therefore, the contention of the second in this regard can not be plausible.

32. As regards to the contention of the Ld. counsel for the second party that no

any independent witness is brought by the first party to adduce evidence before this

court, it can be positively asserted that the disputes as regards to matrimonial

matter is a family disputes and generally is within the family of the matrimonial

and parental one. Therefore, the contention of the ld. counsel in this regard is also

not plausible.

Thus, from the above discussion it appears that the Ext.1 is corroborated

with the evidence adduced by PW1, PW2 and PW3.

33. I have also gone through the evidence adduced by DW1, the second party

himself. He denied in his examination-in-chief all the list of assets and properties as

stated by PW1 and other witnesses. But he admitted that he has one small fishery.

Denying all the assets and properties of him , the second party adduced in his cross-


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examination that he earns his livelihood by doing daily wage labour with a mason.

Now if only the income of the second party from his daily wage labour is considered,

the second party earns monthly income of Rs. 10,000/- . Since PW2, by his own eyes

saw the properties of the second party, and PW1 , after having a long family life of

15 years, adduced the list of properties and income from the said properties ,

although they may not be perfect but an idea can be formed that the second party

can earn income more than 10,000/- per month from all his income sources

including his permanent and impermanent income sources.

34. From the materials records, it is evident that the husband is a healthy man

capable of earning or has been earning income from his house lands and fishery

and also deals in or capable of dealing business with these sources or with other

sources. Once a person has a capacity to earn, he cannot escape his liability to

maintain under the provision of section 125 of Cr.P.C. ( Durga Sing Lodhi vs.

Prembai, 1990 CrLJ 2065 (MP). Besides, sufficient means is not confined to

pecuniary resources as per the decision of different High Courts. So, relying on the

decision in Chandrapal vs. Harpyari, 1991 Cr.L.J 2847,2849(All) wherein it

was held that “sufficient means not only includes tangible property or

sources of income of the husband but also means capacity, potentiality

and status” , it is crystal clear that the husband /second party has sufficient means

to maintain his wife. Hence, it is proved that the second party has sufficient means

to maintain his wife along. Therefore, the point for determination no.3 is

decided positive.

35. Now, let us come to decide the last point for determination whether the first

party is entitled to get any maintenance as prayed for. Since, It is the obligation of

the husband to pay maintenance to his wife for her survival and livelihood

(Bishnupriya Sutradhar vs Nipendra Sutradhar, 2012 Cr.L.J. 1976(Gau), so,

from the discussion made in the point for determination no.1, 2 and 3, it is

established that the first party is entitled to get maintenance as claimed for. But, as

regards to what amount of maintenance the first party is to be entitled from the

second party, to decide it, we need to look into the evidence again. From the


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evidence, it is clear that both the parties have a boy child and the boy child is

living with his father, herein the second party. Considering also that the first party

needs to maintain a moderate decent life with the minimum requirement of food,

clothing, residence, medical expense, I am of the considered opinion that the

petitioner is to be entitled to get an amount of Rs. 3500/-( Three Thousand Five

Hundred Only) per month from the second party for her livelihood.

36. In the result, the prayer of the petitioner is allowed.

37. The second party/opposite party is hereby directed to pay maintenance

allowance to the petitioner at the rate of Rs. 3500/-( Three Thousand Five Hundred

Only) per month from the date of this order.

The final order is pronounced in the open Court and given under my

hand and seal of this Court on this 6th June, 2018.

(Siddhartha Bora )

JUDICIAL MAGISTRATE FIRST CLASS

DHANSIRI SUB-DIVISION


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APPENDIX

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A. WITNESSES FOR THE PETITIONER :

1. PW.1- Nomita Bora

2. PW.2- Smti Amiya Saikia

3. PW.3- Santanu Saikia

B. WITNESSES FOR THE OPPOSITE PARTY:

1. DW1 - Mintu Bora

C. LIST OF EXHIBITS :

Ext. 1 – Complaint Petition

(Siddhartha Bora )

JUDICIAL MAGISTRATE FIRST CLASS DHANSIRI SUB-DIVISION


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in the court of judicial magistrate first class, …golaghatjudiciary.gov.in/jmnt/2018/june/misc...

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