Manik Kutum v. Julie Kutum
ABHAY MANOHAR SAPRE, J. 1. Leave granted.
2. This appeal is directed against the final judgment and ord er
dated 01.08.2017 passed by the Gauhati High Court at Guwahati in
Criminal Revision Petition No.102 of 2012 whereby the High Court while
disposing of the Criminal Revision Petition filed by the respondent herein,
set aside the order dated 21.11.2011 of the sub-Divisiona l Judicial
Magistrate(SDMJ), Gossaigaon, Assam in Misc. Case No.28/2009 and
remanded the case to the SDMJ to decide the application f iled by the
respondent herein afresh.
3. A few facts need mention for the disposal of this appeal.
4. The appellant is the husband and the respondent is the wife .
The respondent (wife) filed an application under Section 125 of the Code
of Criminal Procedure, 1973 claiming maintenance from the appellant
(husband) for herself and for her minor daughter.
5. By order dated 21.11.2011, the SDJM partly allowed the
application and awarded Rs.2000/- per month towards maintenance for
her minor daughter but rejected the application insofar as it relates to
award of maintenance to the respondent-wife on the ground that she is
not the legally married wife of the appellant herein. It is against this
order, the respondent-wife felt aggrieved and filed revision in the Guhati
High Court.
6. By impugned order, the High Court remanded the case to the
SDJM to decide the application afresh. The concluding part of the
impugned order remanding the case to SDJM reads as under:
“In view of the impugned order passed by the learned court
is hereby set aside. The matter is remanded to the lear ned
trial court to declare the respondent (petitioner in the misc.
case) to be the legally married wife of the present petitioner
and to decide the quantum of maintenance by recordin g
proper evidence only on the point of income and to award
proper maintenance to the petitioner as well as the minor
child afresh within a period of three months of recei ving
the order of this court. In the meantime the petition er is
directed to clear all the arrear maintenance towards the
child that was granted earlier by the learned trial court till
the court decides the matter afresh.”
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7. It is against this order, the appellant(husband) has fil ed this
appeal by way of special leave in this Court.
8. Heard Ms. Seema Sharma, learned counsel for the appellant
and Mr. Sahil Tagotra, learned counsel for the respondent.
9. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to modify the impugned order
and fix the maintenance payable by the appellant (husband ) to the
respondent(wife) in addition to what has already been awarded by the
SDJM payable for the minor daughter.
10. In our considered opinion, the High Court erred in remanding
the case to the SDJM for fresh inquiry and for fixing the maintenance
for the respondent (wife).
11. The High Court having recorded a finding of fact in Para 22
of the impugned order that the respondent-wife is the leg ally wedded
wife of the appellant, it should not have then remanded the case to the
SDJM for any inquiry and instead should have fixed the maintenance
payable by the appellant (husband) to the respondent (wife) in the revision
itself. It is more so because we find that the respondent is not earning
and has no independent source of any income to maintain herself.
12. In our view, the need to remand the case to the SDJM is
called for only when some factual inquiry is required to be held to decide
any factual issue involved in the case which cannot be undertaken at the
revision stage or when it is noticed that there is no finding on any particular
factual issue(s) recorded by the SDJM or when additional evide nce is
filed for the first time at the appellate/revision stage which requires
examination by the SDJM in the first instance and to record a finding in
the light of such additional evidence. Such is not the case here because
all the material for fixing the maintenance was on record. It is for these
reasons, we are of the view that there was no need to remand the case
to the SDMJ as it would only prolong the litigation causing harm to the
respondent(wife).
13. We, however, find from the record that the appellant is working
as Constable in RPF. His monthly salary is between Rs.3 0,000/- to
Rs.35,000/- per month.
14. Having regard to all the facts and circumstances of the case,
we consider it just and proper to fix Rs.8,000/- (Rs. Eight Thousand) as
MANIK KUTUM v. JULIE KUTUM
[ABHAY MANOHAR SAPRE, J.]
monthly maintenance payable by the appellant (husba nd) to the
respondent (wife).
15. In other words, the appellant (husband) will pay a total sum of
Rs.10,000/- (Ten Thousand) every month to the respondent (wife), i.e.,
Rs.8,000/- towards maintenance for the respondent (wife) and Rs.2,000/
- towards maintenance for minor daughter which is already fixed by the
SDJM and which we uphold as being just and proper.
16. The appellant will pay the amount of Rs.10,000/- to the
respondent(wife) on 1 st of every month from 01.03.2019 regularly.
17. With the aforesaid modification in the impugned order in favour
of the respondent(wife), the appeal thus stands disposed of.
Devika Gujral Appeal dispoed of.