Page No.# 1/12 GAHC010012782014 2025:GAU-AS:15751 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./318/2014 SMTI BHULU DEVI W/O SRI BAPAN SARMA @ CHAMPARAM PRESENTLY RESIDING IN VILL- SARUTHEKERABARI P.S. MANGALDAI DIST. DARRANG, ASSAM. VERSUS BAPAN SARMA @ CHAMPARAM SARMA S/O LT. NANDI RAM SARMA VILL- BYASPARA P.S. SIPAJHAR, DIST. DARRANG, ASSAM. Advocate for the Petitioner : MS.N M DEKA, MS.D SARMA,MR.P SARMA Advocate for the Respondent : MR.K K GOSWAMI, ,LEGAL AID COUNSEL BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 03/11/2025 Heard Ms. D Mahanta, learned Amicus Curiae, appearing for the petitioner and Mr. M Saikia, learned Amicus Curiae, appearing for the respondent. 2. The present criminal revision petition has been instituted assailing the judgment Page No.# 2/12 dated 26.03.2014 passed by the learned Sessions Judge, Darrang, Mangaldai, in C.R. No. 58(D-4)/2013, interfering with the judgment dated 09.09.2013 passed by the learned Judicial Magistrate First Class, Darrang, Mangaldai in M.R. No. 224/2011. 3. The petitioner, herein, had instituted an application under Section 125 Cr.P.C. before the learned Chief Judicial Magistrate, Darrang, Mangaldai. The said application was registered as M.R. No. 224/2011. In the said application, the petitioner, herein, had contended that the marriage between the petitioner and the respondent, herein, was solemnized in the year 1989 and they had lived as husband and wife. She further contended that in the year 1990, a female child, who was named, Babita Devi, was born out of said wedlock. In the complaint petition, the petitioner, herein, had alleged that after a few days of their marriage, she was subjected to torture, both physical and mental by the respondent, herein. It was further alleged that after 2 (two) months of the birth of the female child, the respondent, herein, had driven her out of her matrimonial house and accordingly, left with no other alternative, she had started to live at her parents’ house, situated at Thekerabari. In the complaint petition, the petitioner, herein, had further contended that in the year 2008, she with the help of her parents and other well wishers, had managed to give away the hand of her daughter in marriage and for that the respondent, herein, had not offered any help. It was also contended in the complaint petition that after having been driven out from her matrimonial house, she had made around 40 attempts of going back to her matrimonial house, but she was prevented from doing so by the respondent, herein. It was also projected in the complaint petition that the respondent, herein, had married another woman and was living with her as husband and wife. The petitioner, herein, in the complaint petition had projected that the necessity for institution of the maintenance case, to be that she was unable to maintain herself, as she was suffering from piles and had become weak and being unable to maintain herself. The respondent, herein, filed his written statement in the said maintenance case and therein, he had admitted the solemnization of the marriage between him and the petitioner, Page No.# 3/12 herein. The paternity of the child, born out of their wedlock was also admitted. In the written statement, the respondent, herein, had projected that the petitioner, herein, had left her matrimonial home willfully and there was no force applied on her by the respondent, herein, for the purpose. It was projected in the written statement that he had tried to bring the petitioner, herein, back to her matrimonial house, however, she refused and accordingly, he had performed his 2nd marriage with one Jayanti Devi and a female child, Swapna Devi, was born out of the said wedlock. In the written statement, the respondent, herein, further projected that he had suffered severe injury due to falling down while cleaning a ceiling while he was working on daily wage basis. He has projected that on account of his such fall, he had become physically incapable and his income source had also become limited. In the written statement, the respondent, herein, had brought on record an agreement executed between him and the petitioner, herein, at the instance of the villagers, wherein, it was agreed by and between the parties that the respondent, herein, shall allow the petitioner, herein, to stay within the compound of his house and had allotted an area of land measuring 20’ X 12’ to the petitioner to enable her to build a house thereon. In the agreement, it was further agreed that the petitioner, herein, shall not claim any maintenance from the respondent, herein. It was further projected that the respondent, herein, had not built any house within his compound. The learned Trial Court upon appreciating the evidences coming on record was pleased vide judgment dated 09.09.2013 to accept the prayer of the petitioner, herein, for grant of maintenance and an amount of Rs.800/- (Rupees Eight Hundred) per month, was granted to the petitioner, herein, w.e.f. 22.06.2011, i.e., the date of filing of the case. The respondent, herein, being aggrieved by the judgment dated 09.09.2013 passed by the learned Judicial Magistrate First Class, Darrang, Mangaldai in M.R. No. 224/2011, assailed the same by way of instituting a criminal revision being C.R. 58(D-4)/2013 before the Court of learned Sessions Judge, Darrang, Mangaldai. The learned Sessions Judge, Darrang, Mangaldai, upon appreciating the evidences coming on record and also upon hearing the parties to the proceedings, proceeded vide Page No.# 4/12 judgment dated 26.03.2014, to allow the said revision petition and dismiss the maintenance case instituted by the petitioner, herein, before the learned Trial Court. The Appellate Court had found that the case fell within the provisions of Section 125(4) of the Cr.P.C. Being aggrieved, the petitioner, herein, has instituted the present proceeding. 4. Ms. D Mahanta, learned Amicus Curiae for the petitioner has submitted that the conclusions drawn by the learned Appellate Court with regard to the claim made by the petitioner, herein, being hit by the provisions of Section 125(4) Cr.P.C. to be not supported by the evidences coming on record. 5. Ms. Mahanta, learned Amicus Curiae for the petitioner has submitted that although there was a delay in instituting the maintenance case, the same was necessitated in view of the condition the petitioner had found herself on account of the ailments suffered by her subsequently. 6. Ms. Mahanta, learned Amicus Curiae for the petitioner has submitted that the solemnization of the marriage between the petitioner and the respondent, herein, not being disputed by the respondent as well as the paternity of the child being born out of such wedlock, also not being disputed by the respondent, herein, the respondent is liable to pay for the maintenance of his legally wedded wife. She has further submitted that the marriage between the petitioner and the respondent, herein, has not been dissolved at any point of time. 7. Ms. Mahanta, learned Amicus Curiae for the petitioner has further highlighted that the evidences coming on record had not highlighted that the petitioner, herein, was living in adultery and that she had refused to live with her husband in her matrimonial house out of her own volition. She submits that the petitioner was required to leave her house and stay in her parental house on account of justifiable reasons, which is highlighted to be the torture, she was subjected to, by the respondent, herein. 8. In view of the above position, Ms. Mahanta, learned Amicus Curiae for the petitioner submits that the judgment dated 09.09.2013 passed by the learned Judicial Magistrate First Page No.# 5/12 Class, Darrang, Mangaldai, in M.R. No. 224/2011 is required to be upheld and the judgment dated 26.03.2014 passed by the learned Sessions Judge, Darrang, Mangaldai in C.R. No. 58(D-4)/2013 is required to be interfered with. 9. Ms. Mahanta, has further submitted that the agreement projected by the respondent in his written statement and the clause incorporated therein that the petitioner, herein, shall not claim any maintenance in future is a void agreement, inasmuch as, such clause is itself opposed to public policy. She submits that the said clause incorporated in the agreement is void and unenforceable. Ms. Mahanta, submits that even if it is held by this Court that the agreement, in question, was voluntarily entered into by the petitioner, herein, the clause incorporated therein, which stipulates that the petitioner, herein, relinquished her claim to maintenance, being opposed to public policy, the agreement even if voluntarily entered into, would be void and unenforceable and the petitioner cannot be non-suited in the said ground. 10. Ms. D Mahanta, in support of her submission, has relied upon a decision of the Bombay High Court in the case of Ramchandra Laxman Kamble Vs. Sobha Ramchandra Kamble, reported in 2019 1 CurCC 286. 11. Per contra, Mr. M Saikia, learned Amicus Curiae for the respondent has by taking this Court to the evidences coming on record has submitted that admittedly the petitioner, herein, had left her matrimonial house about 21 years prior to the date of institution of the M.R. No. 224/2011 and there is no justification brought on record as to the reason why she had left her matrimonial house. He submits that if the reason for leaving the matrimonial house was the torture, she was subjected to, by the respondent, herein, the petitioner, herein, had not taken any steps in this connection and there is no explanation brought on record as to why such steps were not taken by her. 12. Mr. Saikia, learned Amicus Curiae for the respondent, by referring to the written statement filed by the respondent, herein, before the learned Trial Court has submitted that the respondent, herein, had brought on record an agreement executed by and between the petitioner and the respondent, herein, in the year 2010 with regard to the settlement of the disputes between them. He submits that the petitioner, herein, in her claim petition had not Page No.# 6/12 revealed anything with regard to the execution of the said agreement and accordingly, she had not approached the learned Trial Court with clean hands and there is clear suppression of the facts in the matter. He submits that the agreement not being disputed, the contention raised by the petitioner, herein, that she was not aware of the clause incorporated therein to the effect that the petitioner, herein, shall not claim any maintenance from the respondent, is not probable, inasmuch as, the said agreement was so arrived at between the petitioner and the respondent, herein, at the instance of the villagers and both of them had appended their signatures to the said agreement without any objection. 13. Mr. M Saikia, learned Amicus Curiae for the respondent in the above premises, submits that the petitioner, herein, having left her matrimonial house without any justifiable cause or reason, the claim made by the petitioner, herein, before the learned Trial Court is hit by the provisions of Section 125(4) Cr.P.C. and accordingly, he submits that the learned Sessions Judge, Darrang, Mangaldai, in C.R. No. 58(D-4)/2013 had not committed any error in allowing the revision petition and thereby, interfering with the judgment dated 09.09.2013 passed by the learned Judicial Magistrate First Class, Darrang, Mangaldai, in M.R. No. 224/2011 granting maintenance to the petitioner, herein. 14. I have heard the learned counsel for the parties and also perused the materials available on record. 15. At the outset, this Court would consider the contention raised by the learned Amicus Curiae appearing for the petitioner that the petitioner, herein, cannot be non-suited for the ground that she had entered into an agreement with the respondent, herein, and therein, had stipulated that she would not claim any maintenance in future. 16. This Court has perused the judgment dated 26.03.2014 passed by the learned Sessions Judge, Darrang, Mangaldai, in C.R. No. 58(D-4)/2013 and on a perusal of the same finds that the learned Sessions Judge had not non-suited the petitioner, herein, on the ground of the agreement entered into by her with the respondent, herein. Accordingly, the said issue would not mandate any further consideration by this Court. 17. This Court has perused the conclusions reached by the learned Sessions Judge, Page No.# 7/12 Darrang, Mangaldai vide judgment dated 26.03.2014. The conclusions so reached, being relevant is extracted hereinbelow:- “7. I have carefully gone through the evidence adduced by the petitioner before the Court below. She has stated in evidence thatt she had knowledge that on one occasion her husband fell from ceiling of the house and sustained fracture and she never visited her matrimonial home to enquire about the well being of her husband. The opposite party also admitted that the petitioner being her husband has already given her a plot of land for construction of a house. She has further stated that on one occasion she was about to start construction of a house over that land. But the present petitioner rebuked her. 8. The opposite party examined her mother. She has stated that her daughter was driven out of the present petitioner from her matrimonial home. The witness also stated that the present petitioner had subjected her daughter to cruelty for want of dowry. 9. AT this stage I have some reasons to hold that under the present circumstances of the case, the evidence adduced by the petitioner does not require any discussion at all. The question, therefore, arises is as to whether the opposite party has succeeded improving that she is presently unable to maintain herself. 10. I have decided to answer this question in negative. For a long period of 17 years, the opposite party has been residing with her mother. The opposite party has also given her daughter in marriage during this period. Within this long period of 17 years the opposite party never asked any maintenance from the present petitioner. Although it has been endeavored to project that the opposite party had to leave the company of the petitioner after she was subjected to cruelty for want of dowry but during this long spell of 17 years no such allegation has been made against the petitioner. Now the present prayer for maintenance is based on the fact that the opposite party has become old and has been suffering from certain ailments and that is why she is required to be maintained by her husband, the petitioner. I have no doubt that the Page No.# 8/12 justification made on the part of the opposite party does not hold good in the eye of law. At this stage, I have decided to agree with the learned counsel for the petitioner that the opposite party had left her matrimonial home without any just and reasonable cause and the case of the opposite party fall within the ambit of Section 125(4) Cr.P.C.” 18. On a perusal of the conclusions reached by the learned Sessions Judge, Darrang, Mangaldai vide judgment dated 26.03.2014, this Court finds that the learned Sessions Judge had on appreciating the evidences coming on record found that the petitioner, herein, for around 17 years had left the company of the respondent, herein, and was residing with her mother. In the meanwhile, the daughter of the petitioner, herein, was also given in marriage. The petitioner, herein, had not claimed any maintenance from the respondent, herein, during the period when she had lived separately from the respondent, herein. Further, the learned Sessions Judge, Darrang, Mangaldai found that the projection made by the respondent, herein, that she had took leave of the company of the respondent, herein, after she was subjected to cruelty for non-fulfillment of the demand of dowry, was found to be not sustainable, inasmuch as, during the period of 17 years, when the petitioner, herein, lived away from the respondent, herein, no complaint in this connection was made at any point of time. 19. The learned Sessions Judge, Darrang, Mangaldai, concluded that the respondent, herein, had left her matrimonial home without any just and reasonable cause and accordingly, found the claim of the petitioner, herein, to be hit by the provisions of Section 125(4) Cr.P.C. 20. The provisions of Section 125(4) Cr.P.C., being relevant, the same is extracted hereinbelow:- 125. Order for maintenance of wives, children and parents.— (1) If any person having sufficient means neglects or refuses to maintain — (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or Page No.# 9/12 (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1[ ***], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: [Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] Explanation.—For the purposes of this Chapter,— (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) “wife” includes a woman who has been divorced by, or has obtained a Page No.# 10/12 divorce from, her husband and has not remarried. [(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. (4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Page No.# 11/12 (5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 21. A perusal of the provisions of Sub Section (4) of Section 125 Cr.P.C., mandates that no wife shall be entitled to receive an allowance for maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under Section 125 Cr.P.C. if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. 22. The evidences coming on record does not reflect that the petitioner, herein, was alleged to be living in adultery and/or to have lived separately from her husband by mutual consent. 23. The evidences coming on record having demonstrated that the petitioner, herein, had lived separately from her husband for a long period of time and the same not being demonstrated to be on account of any justifiable cause or reason, this Court finds that the claim of the petitioner, herein, is hit by the provisions of Sub Section (4) of Section 125 Cr.P.C. and accordingly, the petitioner, herein, would not be entitled to claim any maintenance from the respondent, herein. 24. In view of the above discussion, this Court does not find any infirmity in the conclusions drawn by the learned Sessions Judge, Darrang, Mangaldai vide judgment dated 26.03.2014 in C.R. No. 58 (D-4)/2013 and the same accordingly, would not mandate any interference. 25. In view of the above, the present criminal revision petition is held to be devoid of any merit and the same stands dismissed. However, there would be no order as to cost. 26. Registry to send down the records to the learned Trial Court along with a copy of this order for information. 27. Before parting with the records of the case, this Court records its appreciation for the Page No.# 12/12 able assistance rendered by Ms. D Mahanta and Mr. M Saikia, learned counsels appearing as Amicus Curiae, towards disposal of the matter. JUDGE Comparing Assistant