MANIK KUTUM versus JULIE KUTUM on 7 March 2019

916 SUPREME COURT REPORTS [2019] 2 S.C.R.[2019] 2 S.C.R. 916

[2019] 2 S.C.R. 916

A

MANIK KUTUM

v.

JULIE KUTUM

Criminal Appeal No.448 of 2019

BMARCH 07, 2019[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI , JJ.]

Code of Criminal Procedure, 1973:

s.125 – Maintenance – Application for maintenance filed byCthe respondent (wife) for herself and for her minor daughter – Trialcourt partly allowed the claim and awarded Rs. 2000/- p.m. towardsmaintenance for her minor daughter but rejected the claim insofaras it related to the respondent on the ground that she was not legallymarried wife of the appellant – Respondent filed revision in HighDCourt – High Court remanded the case to trial court to decideapplication afresh – On husband’s appeal, held: High Court erredin remanding the case to trial court for fresh inquiry and for fixingthe maintenance for the respondent (wife) – The need to remand thecase to the trial court is called for only when some factual inquiryis required to be held to decide any factual issue involved in theEcase which cannot be undertaken at the revision stage or when it isnoticed that there is no finding on any particular factual issuerecorded by the trial court or when additional evidence is filed forthe first time at the appellate/revision stage which requiresexamination by the trial court in the first instance and to record aFfinding in the light of such additional evidence – Such was not thecase here because all the material for fixing the maintenance wason record – Appellant was working as Constable in RPF and hismonthly salary was between Rs.30,000/- to Rs.35,000/- per month– Therefore, Rs.8,000/- is fixed as monthly maintenance payable bythe appellant (husband) to the respondent (wife) – AppellantG(husband) to pay a total sum of Rs.10,000/- every month to therespondent (wife), i.e., Rs.8,000/- towards maintenance for therespondent (wife) and Rs.2,000/- towards maintenance for minordaughter which is already fixed by the trial court and is upheld asbeing just and proper – Revisionary jurisdiction – Maintenance.H

Disposing of the appeal, the Court

HELD: 1. The High Court having recorded a finding of factin the impugned order that the respondent-wife was the legallywedded wife of the appellant, it should not have then remandedthe case to the SDJM for any inquiry and instead should havefixed the maintenance payable by the appellant (husband) to therespondent (wife) in the revision itself. More so because therespondent was not earning and had no independent source ofany income to maintain herself. [Para 11][919-D]

2. The need to remand the case to the SDJM is called foronly when some factual inquiry is required to be held to decideany factual issue involved in the case which cannot be undertakenat the revision stage or when it is noticed that there is no findingon any particular factual issue(s) recorded by the SDJM or whenadditional evidence is filed for the first time at the appellate/revision stage which requires examination by the SDJM in thefirst instance and to record a finding in the light of such additionalevidence. Such is not the case here because all the material forfixing the maintenance was on record. It is for these reasons,there was no need to remand the case to the SDMJ as it wouldonly prolong the litigation causing harm to the respondent(wife).The appellant is working as Constable in RPF. His monthly salaryis between Rs.30,000/- to Rs.35,000/- per month. It is just andproper to fix Rs.8,000/- as monthly maintenance payable by theappellant (husband) to the respondent (wife). The appellant(husband) will pay a total sum of Rs.10,000/- every month to therespondent (wife), i.e., Rs.8,000/- towards maintenance for therespondent (wife) and Rs.2,000/- towards maintenance for minordaughter which is already fixed by the SDJM and which is upheldas being just and proper. [Paras 12-15][919-E-H; 920-A, B]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 448 of 2019

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 448 of 2019

From the Judgment and Order dated 01.08.2017 by theGauhati High Court at Guwahati, Assam in Criminal Revision PetitionNo. 102 of 2012.

Ms. Seema Sharma, Somiran Sharma, Advs. for the Appellant.

Sahil Tagotra, Adv. for the Respondent.

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B

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AThe Judgment of the Court was delivered byABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 01.08.2017 passed by the Gauhati High Court at Guwahati inCriminal Revision Petition No.102 of 2012 whereby the High Court whileBdisposing of the Criminal Revision Petition filed by the respondent herein,set aside the order dated 21.11.2011 of the sub-Divisional JudicialMagistrate(SDMJ), Gossaigaon, Assam in Misc. Case No.28/2009 andremanded the case to the SDMJ to decide the application filed by therespondent herein afresh.

C3. 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 Codeof Criminal Procedure, 1973 claiming maintenance from the appellant(husband) for herself and for her minor daughter.

D

5. By order dated 21.11.2011, the SDJM partly allowed theapplication and awarded Rs.2000/- per month towards maintenance forher minor daughter but rejected the application insofar as it relates toaward of maintenance to the respondent-wife on the ground that she isnot the legally married wife of the appellant herein. It is against thisEorder, the respondent-wife felt aggrieved and filed revision in the GuhatiHigh Court.

6. By impugned order, the High Court remanded the case to theSDJM to decide the application afresh. The concluding part of theimpugned order remanding the case to SDJM reads as under:F

“In view of the impugned order passed by the learned courtis hereby set aside. The matter is remanded to the learnedtrial court to declare the respondent (petitioner in the misc.case) to be the legally married wife of the present petitionerand to decide the quantum of maintenance by recordingGproper evidence only on the point of income and to awardproper maintenance to the petitioner as well as the minorchild afresh within a period of three months of receivingthe order of this court. In the meantime the petitioner isdirected to clear all the arrear maintenance towards thechild that was granted earlier by the learned trial court tillHthe court decides the matter afresh.”

7. It is against this order, the appellant(husband) has filed thisappeal by way of special leave in this Court.

8. Heard Ms. Seema Sharma, learned counsel for the appellantand Mr. Sahil Tagotra, learned counsel for the respondent.

9. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to modify the impugned orderand fix the maintenance payable by the appellant (husband) to therespondent(wife) in addition to what has already been awarded by theSDJM payable for the minor daughter.

10. In our considered opinion, the High Court erred in remandingthe case to the SDJM for fresh inquiry and for fixing the maintenancefor the respondent (wife).

11. The High Court having recorded a finding of fact in Para 22of the impugned order that the respondent-wife is the legally weddedwife of the appellant, it should not have then remanded the case to theSDJM for any inquiry and instead should have fixed the maintenancepayable by the appellant (husband) to the respondent (wife) in the revisionitself. It is more so because we find that the respondent is not earningand has no independent source of any income to maintain herself.

12. In our view, the need to remand the case to the SDJM iscalled for only when some factual inquiry is required to be held to decideany factual issue involved in the case which cannot be undertaken at therevision stage or when it is noticed that there is no finding on any particularfactual issue(s) recorded by the SDJM or when additional evidence isfiled for the first time at the appellate/revision stage which requiresexamination by the SDJM in the first instance and to record a finding inthe light of such additional evidence. Such is not the case here becauseall the material for fixing the maintenance was on record. It is for thesereasons, we are of the view that there was no need to remand the caseto the SDMJ as it would only prolong the litigation causing harm to therespondent(wife).

13. We, however, find from the record that the appellant is workingas Constable in RPF. His monthly salary is between Rs.30,000/- toRs.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 A

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920 SUPREME COURT REPORTS [2019] 2 S.C.R.

Amonthly maintenance payable by the appellant (husband) to therespondent (wife).

15. In other words, the appellant (husband) will pay a total sum ofRs.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/B- towards maintenance for minor daughter which is already fixed by theSDJM and which we uphold as being just and proper.

16. The appellant will pay the amount of Rs.10,000/- to therespondent(wife) on 1[st] of every month from 01.03.2019 regularly.

17. With the aforesaid modification in the impugned order in favourCof the respondent(wife), the appeal thus stands disposed of.

Devika Gujral

Appeal dispoed of.

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