Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
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)
J U D G M E N T
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
st
Rs.10,000/ to the respondent(wife) on 1 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