Manik Kutum vs Julie Kutum

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.448 OF 2019 (Arising out of S.L.P.(Crl.) No.3652 of 2018)

Manik Kutum ….Appellant(s)

VERSUS

Julie Kutum ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final

judgment and order dated 01.08.2017 passed by

the Gauhati High Court at Guwahati in Criminal Signature Not Verified Digitally signed by ASHOK RAJ SINGH Date: 2019.03.07 17:29:12 IST Reason: 1 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 sub­Divisional

Judicial Magistrate(SDMJ), Gossaigaon, Assam in

Misc. Case No.28/2009 and remanded the case to

the SDMJ to decide the application filed 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.

2

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 respondent­wife on the

ground that she is not the legally married wife of the

appellant herein. It is against this order, the

respondent­wife 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 learned 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 recording proper evidence only on the point of income and to

3 award proper maintenance to the petitioner as well as the minor child afresh within a period of three months of receiving the order of this court. In the meantime the petitioner 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.”

7. It is against this order, the appellant(husband)

has filed 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

4 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

respondent­wife is the legally 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.

5

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 evidence

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).

6

13. We, however, find from the record that the

appellant is working as Constable in RPF. His

monthly salary is between Rs.30,000/­ 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

monthly maintenance payable by the appellant

(husband) 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.

7

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.

………...................................J. [ABHAY MANOHAR SAPRE]

....……..................................J. [DINESH MAHESHWARI] New Delhi;

March 07, 2019.

8