Page No.# 1/11 GAHC010144052025 2026:GAU-AS:4958 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./280/2025 SRI KANTIRAM DAS S/O- LATE DEBEN DAS. R/O- VILL.- BONGSHAR (ABHAYAPURIA PUM), P.S.- SUALKUCHI, DIST.- KAMRUP(R), ASSAM. VERSUS BOBY DAS AND ANR W/O- SRI KANTIRAM DAS. R/O- VILL.- BONGSHAR (ABHAYAPURIA PUM), P.S.- SUALKUCHI, DIST.- KAMRUP(R), ASSAM. PIN -781103. 2:SRI UTPAL DAS. S/O- LATE DEBEN DAS. R/O- VILL.- BONGSHAR (ABHAYAPURIA PUM) P.S.- SUALKUCHI DIST.- KAMRUP(R) ASSAM PIN -781103 Advocate for the Petitioner : MR. S K GOSWAMI, MS P SARMA,MR. R SHARMA Advocate for the Respondent : DR. N DEKA, MS. P CHAKRABORTY (R-1) Linked Case : Crl.Rev.P./234/2025 SMTI. BOBY DAS W/O- SRI KANTIRAM DAS. Page No.# 2/11 D/O- LATE DEBEN BAISHYA. R/O-- VILLAGE-BONGSHAR (ABHYAPURI PUM) P. S.- SUALKUCHI P.O.- BONGSHAR DISTRICT- KAMRUP PIN-781103 ASSAM VERSUS SRI KANTIRAM DAS S/O- LATE DEBEN DAS. PERMANENT R/O- VILLAGE-BONGSHAR (ABHYAPURI PAM) P. S. - SUALKUCHI P.O.- BONGSHAR DISTRICT- KAMRUP PIN-781103 ASSAM. OFFICE ADDRESS- OFFICE OF THE COMMANDANT 10TH ABPN KAHILIPARA GUWAHATI-781034 ASSAM ------------ Advocate for : DR. N DEKA Advocate for : appearing for SRI KANTIRAM DAS :::BEFORE::: HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Date on which judgment is reserved : 24.03.2026 Date of pronouncement of judgment : 06.04.2026 Whether the pronouncement is of the : N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced? Page No.# 3/11 JUDGMENT & ORDER (CAV) 1. Heard Mr. S.K. Goswami, learned counsel for the petitioner in and Mr. N. Deka, learned counsel for the respondent no.1. No notice was issued to the respondent no.2 in this case, as he was not a party in the impugned proceedings. 2. This revision is directed against the order dated 26/05/2025 passed by the Court of Principal Judge, Family Court No.1, Kamrup (M), Guwahati in FC(Crl) case No. 462/2017 directing payment of maintenance of Rs.6,000/- to the petitioner wife (respondent no.1), Rs. 2,000/- to Purabi Das till she married in the year 2023 and Rs. 4,000/- to Dolly Das till her marriage and Rs. 2,000/- to son Joon Das till he attains majority with effect from the date of filing this case. 3. The facts as projected by the revision petitioner, may be briefly stated. The petitioner married with the respondent no. 1 in the month of January, 1997 and thereafter, both the petitioner and the respondent no. 1 lived together as husband and wife at Sualkuchi. The petitioner has joined as a Constable in Assam Police and was posted at Silchar in the year 1996. Thereafter, he was transferred to different place of Assam. At the relevant time, the respondent no. 1 was residing at her native place at Bongshar with his mother and brother of petitioner namely Sri Utpal Das (respondent no. 2). During the absence of the petitioner, the respondent no. 1 started an illicit relationship with the respondent no. 2 namely Utpal Das. Eventually, a village meeting was held to solve the dispute between the petitioner and the respondent no. 1 in the month of January, 2017 and in the said meeting, the respondent no. 1 had disclosed in presence of the other villagers, that she will reside with the respondent no. 2. Page No.# 4/11 Ultimately, one settlement has been arrived that, they will live separately and the petitioner decided to dissolve their marriage by deed of agreement. Accordingly, deed ofagreement was executed between the petitioner and the respondent on 22.01.2017. 4. The respondent no. 1 used to live separately with the respondent no. 2 before filing the present petition and they resided together as husband and wife. As a result, the present petitioner was living along with his mother. The petitioner had also filed a divorce case in the Family Court, Kamrup(M) at Guwahati and same has been numbered as F.C. (Civil) Case No. 741/2013. But, the same was withdrawn on assurance that, the respondent no. 1 will live with the petitioner. But thereafter, the respondent no. 1 refused to come to live together with the petitioner, as husband and wife. 5. Thereafter the respondent no. 1 filed a case under the Domestic Violence Act in the Court of Sub-Divisional Judicial Magistrate at Hajo and same has been numbered as D.V. Case No. 16/2024 but same was also withdrawn again as per compromise and assured that the respondent no. 1 will live with the petitioner as husband and wife. 6. Thereafter the respondent no. 1 herein filed another petition under Section 125 Cr.P.C. In the Court of Principal Judge, Family Court, Kamrup(M) at Guwahati for her maintenance, which has been numbered as F.C.(Crl) Case No. 462/2017 and the Hon'ble Court issued notice fixing the case on 25/10/2017 for filing objection. 7. Upon receipt of notice, the present petitioner as opposite party entered appearance and filed his objection, where after issues were framed and evidence was led and finally, the impugned order as above was passed, directing payment of maintenance as stated above. Page No.# 5/11 8. Learned Counsel for the petitioner Mr. S K Goswami has taken this Court through the evidence on record and in the course of his submissions, has referred to section 125(4) Cr. PC, which is quoted here in below :- “125 (4) Cr. PC. 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.” 9. It is the submission of learned counsel for the petitioner that the petitioner as opposite party had adduced sufficient evidence to establish that the respondent no.1/wife had been living in adultery and that without any sufficient reason, she has refused to live with her husband. It is also urged that a document purporting to be an agreement for divorce by mutual consent, though not legally valid, had been executed by the parties in a village meeting to show that the respondent no.1 has been living separately from the present petitioner by mutual consent and hence, she is not entitled to any maintenance. It is further submitted that the present challenge is with regard to the maintenance granted to the wife /respondent no.1 only and not to the children. 10. The elder daughter of the petitioner is already married and therefore, she is anyway not entitled to maintenance from the date of her marriage, whereas, the son has attained majority and from that date onwards, he is not entitled to maintenance and therefore, the order of the learned Family Court with regard to the children of the petitioner and respondent no. 1 does not suffer from any infirmity. The learned counsel for the petitioner has relied upon the following decisions:- Page No.# 6/11 (1) Kripesh Ranjan Nath vs. Shukla Rani Nath reported in 2001 (1) GLT 368 (2) Subal Chandra Saha vs. Pritikana Saha reported in 2003 (3) GLT 102 (3) Smti. Usha Das vs. Sri Alok Kumar Das reported in 2019 (1) GLT 248, (4) Sri Tarun Dutta vs. State of Assam and another reported in 2025 (6) GLT 336, (5) Amarendra Kumar Paul vs. Maya Paul and others reported in (2009) 8 SCC 359 (6) Sheetala Prasad and others vs. Sri Kant and another reported in (2010) 2 SCC 190. 11. Per Contra learned counsel for the respondent no. 1 has also taken the Court to the evidence on record with a view to satisfy the Court that the petitioner herein had failed to establish that the respondent no.1 lived in adultery or that she had deserted the petitioner without just cause and has relied upon the following decisions : (1) Pyla Mutyalamma vs. Pyla Suri Demudu and others reported in (2011) 12 SCC 189, (2) K. Kuppuraj Kannappa vs. J. Trilokamurthy reported in Manu/KA/4512/2020 and (3) Deb Narayan Haldar vs. Anushree Haldar reported in Manu/SC/0629/2003. 12. In Pyla Mutyalamma (Supra), it was held by the Hon’ble Apex Court in Page No.# 7/11 Paragraph 9 & 10 of the said Judgment as follows. “9. In fact, we also find sufficient substance in the plea that the High Court in its revisional jurisdiction ought not to have entered into a scrutiny of the finding recorded by the Magistrate that the Appellant was a married wife of the Respondent, before allowing an application determining maintenance as it is well-settled that the revisional court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction. The High Court under its revisional jurisdiction is not required to enter into re-appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mondal v. State of Jharkhand AIR 2006 Jhar. R. 153 that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional court is very limited. The revisional court would not substitute its own finding and upset the maintenance order recorded by the Magistrate. 10. In revision against the maintenance order passed in proceedings under Section 125, Code of Criminal Procedure, the revisional court has no power to re-assess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the revisional court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both child and the woman. This was the view expressed by the Supreme Court in the matter of Santosh (Smt.) v. Naresh Pal MANU/SC/1214/1998 (1998) 8 SCC 447, as also in the case of Parvathy Rani Sahu v. Bishnu Sahu: (2002) 10 SCC 510. Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of Page No.# 8/11 the order passed by the Magistrate while determining maintenance under Section 125, Code of Criminal Procedure is that it should not be disturbed while exercising revisional jurisdiction.” 13. In similar findings views were expressed by the Karnataka High Court in K. Kuppuraj Kannappa (supra) wherein it was held at Paragraph-5 of the said judgment as follows : “5. This Court in exercise of power under Section 397 of Cr.P.C. cannot re- appreciate the evidence and arrive at a different conclusion, even if different view is possible from the evidence. The jurisdiction under Section 397 of Cr.P.C. could be exercised only when the decision under challenge is found grossly erroneous, non-compliance with the provisions of law; finding of fact affecting the decision is not based on evidence; non- consideration of the material evidence and that the lower court has exercised the discretion arbitrarily or perversely and acted in excess of its jurisdiction or abused its power resulting in failure of justice. No such errors or illegalities are found in the impugned order.” 14. In the case of Sheetala Prasad (Supra) cited on behalf of the petitioner, it was held by the Hon’ble Apex Court at paragraph-9 of the said judgment as follows : “9. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub- Section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the Page No.# 9/11 order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered.” 15. A bare parcel of the evidence on record would show that the present petitioner/opposite party as DW-1 had deposed that his wife had maintained illicit relationship with his own brother who was staying with his wife when the petitioner was posted in Silchar in course of his employment and despite requests, she continued with the said illicit relationship and stated to him that she will not stay with him anymore. He had further stated that when pursuant to withdrawal of the DV case, he had gone to the house of his brother to take back his wife, she refused to continue conjugal life with the DW-1/petitioner. During cross examination, it was suggested to DW-1 that with an intent to enter into a second marriage, he did not want to continue relationship with his wife and hence falsely alleged that she was having illicit relationship with his brother. It was also put to him that his wife was not maintaining any such illicit relationship with his brother. The DW-2 had also deposed in his deposition at paragraph 7, 8 and 9 stated as follows:– “7.`That presently Sri Kanti Ram Das is a Constable in Assam Police. Because of the posting and duties allotted to him, Sri Kanti Ram Das have to stay outside of his residence keeping his wife Smti. Boby Das, along with his mother and brother Utpal Das. Taking advantage of this, Sri Utpal Das, the brother of Sri Kanti Ram Das and Smti. Boby Das wife of Sri Kanti Ram Das started making illicit relationship. As a result, the news of the relation became known to all in the village and Sri Kanti Ram Das had to Page No.# 10/11 face lot of humiliation in the village. Sri Kanti Ram Das also initially noticed the relation of his wife Smti. Boby Das with his brother Utpal Das from few years of his marriage but ignored the same considering that his wife may love him as his brother. 8. That Sri Kanti Ram Das who is known in the locality for his mild and amicable nature could not bear the illicit relationship of his wife Boby Das with his younger brother Utpal Das .As a result, quarrel took place between the Sri Kanti Ram Das and his wife Smti Boby Das and thereafter village meeting was held in the month of February 2013 in presence of the 6 numbers of witnesses including me who are namely, (1) Sri Ramesh Das as President. (2) Sri Lalmohan Baishya (Gaon Burah), (3) Sri Dharmeswar Kalita (Member of Panchayat) (4) Sri Suren Das (Secretary), (5) Sr Bhupen Kalita, (6) Sri Shyam Das (relative) and I was also present in the said meeting. 9. That in the same meeting, wife of Sri Kanti Ram Das Smti. Boby Das has openly declared in presence of the above noted persons that she will not live with the Sri Kanti Ram Das as a husband and wife and she will live as a wife of Sri Utpal Das, who is the brother of Sri Kanti Ram Das. Thereafter, she has openly stayed with Sri Utpal Das the brother of Sri Kanti Ram Das in the same residence living Sri Kanti Ram Das alone and she has threatened that she will commit suicide if Sri Kanti Ram Das and village man force her to stay along with Sri Kanti Ram Das.” 16. Reverting to the impugned judgment, it is to be seen as to how the learned Court below has dealt with the aforesaid evidence on record. On perusal of the entire judgment, it is seen that the issue of “living in adultery” was dealt with the relevant portion at Paragraph 8 of the impugned judgment in the following manner :- “…..The allegation of the extra marital affairs between the petitioner and Utpal Das has not been proved as there is no direct or indirect evidence on this issue from the side of the opposite party. A mere allegation of wife's extra marital allegation or proof of maintaining a dependent wife maintenance by someone does not disentitle the wife from maintenance from an able bodied husband……..” Page No.# 11/11 17. There is no discussion whatsoever with regard to the evidence on the point led by the petitioner/opposite party before the learned Family Court and the said learned Court appears to have come to a finding that there is no direct or indirect evidence on this issue, wholly ignoring the evidence of the DWs 1 and 2 in this regard. The value of the aforesaid evidence is of course a different matter which is to be decided by the learned Court below after discussing the same and assigning reasons for its acceptance or non-acceptance as the case may be, but it was incumbent upon the learned Court below to discuss the evidence on record before arriving at its conclusions. 18. In view of the above, it is apparent that the learned Court below has overlooked material evidence which calls for interference by the revisional Court. In other words, the learned Trial Court has acted with material irregularity due to non-consideration of material evidence and therefore, the findings of the learned Court below cannot be sustained. Accordingly, the impugned order is set aside as regards the maintenance granted to the wife/respondent No.1 is concerned and the matter is remanded back to the learned Family Court, Kamrup, Guwahati for a fresh decision after appreciation of the entire evidence on record. 19. The revision stands allowed and disposed of accordingly. 20. Send back the TCR. JUDGE Comparing Assistant