Crl.Rev.P./32/2019 of SAHJAHAN MIAH Vs KALPANA BIBI AND ANR on 20 December 2019

1. Smti. Kalpana Bibi, wife of Shri Sahjahan Miah wife of Shri Sahjahan Miah

2. Smti. Soniya Begum daughter of Shri Sahjahan Miah, daughter of Shri Sahjahan Miah, Both residents of West Bank of Jaganath Dighi, PS: R.K. Pur, Udaipur, Gomati, Tripura.

----Respondent(s)

For Petitioner(s) : Mr. T. K. Deb, Adv. For Respondent(s) : Mr. K. Nath, Adv. Date of hearing and delivery of judgment & order : 20.12.2019 Whether fit for reporting : YES/NO

HON’BLE MR. JUSTICE S. TALAPATRA

Judgment & Order (Oral)

Heard Mr. T.K. Deb, learned counsel appearing for the petitioner as well as Mr. K. Nath, learned counsel appearing for the respondents.

[2] By means of this application filed under Section 19 (4) of the Family Courts Act, 1984, the order dated 03.04.2019 delivered in CRL.MISC 88 of 2018 has been challenged on the solitary ground that while assessing the sufficient means, the Judge, Family Court, Udaipur has taken into consideration some facts which are not true and accordingly the Judge, Family Court has arrived at a incorrect finding in respect of the earning of the petitioner. On such premises, the petitioner has been directed to pay maintenance allowance to the respondent No.1 and respondent No.2 of at Rs.5000/- each and in total being Rs.10,000/- per month w.e.f. 01.04.2019.

[3] Mr. T. K. Deb, learned counsel, by virtue of this order of this court dated 11.11.2019 has submitted a affidavit to show that he is no more the owner of the five vehicles reference of which has been made in the cross-examination. In response to that affidavit, the respondents have filed their objection and stated that only to avoid the liability of payment of maintenance, the petitioner has sold out the vehicles. But, it appears from the records that all the vehicles were sold out prior to 20.09.2019. The vehicle bearing No. TR03C2041, MARUTI EECO 5 STR was sold on 20.09.2019. The Judge, Family Court, Udaipur, Gomati District while passing the impugned order dated 03.04.2019 has observed as under:

“From the evidence as discussed above, I find no ground to disbelieve the witnesses of the petitioner as the veracity of the witnesses could not be shaken by the O.P. It is established that the petitioner no.1 was tortured by the O.P. and he is not maintaining the petitioners. From the cross-examination of OPW.1 it becomes clear that he has vehicles. So, it can safely be presumed that he has sufficient income to maintain the petitioners”.

[4] Mr. Deb, learned counsel appearing for the petitioner has submitted that these findings as written by the Judge, Family Court is not supported by evidence inasmuch as from the additional affidavit filed by the petitioner, it would be apparent that the four vehicles stood in the name of the four other persons and the vehicle (TR03C2041, MARUTI EECO 5 STR) which was transferred on 20.09.2019 stood in his name and that vehicle has also been transferred.

[5]Mr. Nath, learned counsel appearing for the respondents has raised jurisprudential objection in respect of the value of the affidavit filed by the petitioner. That apart, he has submitted that the vehicle that stood in his name at the time of institution of the proceeding has been transferred to avoid the liability of payment of maintenance to the respondents. Moreover, Mr. Nath, learned counsel has referred to the affidavit of the petitioner and one Manoara Begam affirmed on 27.06.2014 to claim that the petitioner has contracted second marriage. Thus, it shows that he has the financial capacity to maintain another wife.

[6] Mr. Deb, learned counsel has submitted in response that the petitioner is only a driver of the private vehicle and earns sum of Rs.6000/- per month and that apart he has no other income. This court has given keen attention to the fact that has been referred to by the parties as well as the analysis made by the Judge, Family Court, Udaipur. On such appreciation, this court is of the view that the petitioner has sufficient means and the allegation of Mr. Nath, learned counsel that to avoid the liability of payment of maintenance, the petitioner has transferred the vehicle that stood in his name cannot be sold out. That apart, in the cross-examination, the petitioner has admitted that he was dealing in hiring of the vehicles to the government Department. Whether in reality, the vehicle stood in the name of the petitioner or not, becomes immaterial to access the financial capacity. Those who can handle and can keep one commercial vehicle which has been, however, sold, this can be safely presumed that he has income more than 30,000/- a month.

As such, this court does not find any merit in the petition and accordingly the petitions stands dismissed.

JUDGE