Gauhati High Court
Aynal Hoque vs Samiron Nessa on 1 August, 2025
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GAHC010079552024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./157/2024
AYNAL HOQUE
S/O LT. JOLUMUDDIN SK.
R/O VILL- MONOKUCHA
P.O. MORNAI
P.S. MORNAI
DIST. GOALPARA, ASSAM
VERSUS
SAMIRON NESSA
W/O AYNAL HOQUE
D/O SONGSER ALI
R/O VILL- RAKHYASINI PT. I
P.S. MORNAI
DIST. GOALPARA, ASSAM
Advocate for the Petitioner : MR. M A SHEIKH, MR. W A SHEIKH,MS F INTAZ
Advocate for the Respondent : MR. M ALOM, MR. M K HUSSAIN,MRS. S Y AHMED
BEFORE
HONOURABLE MR. JUSTICE PRANJAL DAS
ORDER
01.08.2025
1. Heard Mr. M. A. Sheikh, learned counsel assisted by Mr. Mr. S. A.
Wasi, learned counsel for the petitioner. Also heard Mr. M. K. Hussain,
learned counsel for the respondent.
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2. The instant Criminal Revision Petition has been filed by the
petitioner, Aynal Hoque, aggrieved by the judgment and order dated
17.02.2024 passed by the learned Additional CJM, Goalpara in case No.
MCR 43/2021 whereby the learned Magistrate invoking the powers under
Section 125 Cr.P.C. was pleased to award monthly maintenance of
Rs.2000/- to the respondent Samiron Nessa/1st party.
3. The scanned copy of case record is received from the learned court
below.
4. Upon issuance of notice, the respondent No.2 entered appearance
through the leaned counsel, Mr. M. K. Hussain, who had also filed a
written objection in this proceeding by way of an affidavit.
5. The facts in brief are that the respondent as 1 st party filed a petition
under Section 125 Cr.P.C. seeking maintenance from the 2 nd
party/petitioner stated to be her husband on the ground of being driven
out from the matrimonial house and unable to maintain herself. During the
proceeding, the 1st party adduced the evidence of 3 (three) witnesses
including herself who were cross-examined on behalf of the 2 nd party. The
petitioner/2nd party also adduced evidence of 2 (two) witnesses including
himself and another, both of whom were cross-examined.
6. After hearing the parties, the learned court below allowed the
petition of the respondent/1st party granting maintenance of Rs.2,000/-
from the date of application i.e. 26.03.2021. The petitioner/ 2 nd party was
also directed to pay cost of Rs.5,000/- to the 1 st party in terms of Section
126(3) of the Cr.P.C.
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7. During the proceeding as reflected in paragraph 9 of the impugned
judgment three points for determination were framed:
“(i) Whether the 1st party had just and reasonable grounds to live
separately from her husband?
(ii)Whether the 2nd party-husband has the capacity to pay
maintenance to his wife, but willfully neglected her?
(iii) whether the 1st party is entitled to get maintenance? What
should be the quantum of maintenance and its effective date?”
8. With regard to the 1st point, the learned court below held that the
respondent/1st party has reasonable grounds to live separately from her
husband. While arriving at this finding, the learned court below referred to
one of the Explanations to Section 125 Cr.P.C. which stipulates that in case
of marriage with another woman or keeping of a mistress, the wife would
be justified in her refusal to leave with the husband. With regard to the
other two points, the learned court below held that the petitioner/2 nd
party had the means to maintain his wife and the respondent/1 st party
was also entitled in law in terms of Section 125 Cr.P.C. to receive
maintenance which accordingly was quantify as Rs.2000/- per month, as
already stated.
9. Mr. M. A. Sheikh, learned counsel assisted by Mr. S. A. Wasi learned
counsel for the petitioner submitted that this is actually the second round
of litigation between the parties as earlier, the 1 st party had preferred a
proceeding under Section 12 of the Protection of Women from Domestic
Violence Act, 2025 (hereinafter referred to as D.V. Act).
10. In the said proceeding under the D.V. Act, the learned JMFC,
Goalpara in D.V. Case No. 47/2017 has directed the petitioner to pay
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monthly rent of Rs.1500/-, monthly maintenance of Rs.2,000/- and
compensation amounting to Rs.50,000/- to the respondent/wife after
holding that she was able to prove commission of domestic violence within
the meaning of the Act. The said judgment and order was taken up in
appeal resulting in Criminal Appeal No.11/2019 wherein vide judgment
and order dated 30.06.2020, the learned Additional Sessions Judge,
Goalpara was pleased to set aside the judgment of the learned court
below holding that the wife was not entitled to any relief. Thereafter, the
same was taken up in Revision before this Court by the wife and the
revision was also dismissed vide judgment and order dated 09.11.2021
passed in Criminal Revision Petition No. 163/2020.
11. In this backdrop, the learned counsel for the petitioner submits that
the allegation and contention of the wife regarding suffering
cruelty/domestic violence have been rejected by the learned appellate
court as well as by this Court. That, therefore, the petition under Section
125 Cr.P.C. seeking maintenance on the ground of such cruelty lacks
standing and merit.
12. In support of this contention, learned counsel relies upon a decision
of the Hon’ble Supreme Court rendered in the case of SC Garg vs State of
Uttar Pradesh and another, 2025 live law (SC) 436.
13. In terms of this judgment, the learned counsel for the petitioner
submits that if a particular issue has been decided in an earlier proceeding
under Criminal law, then the same will also be resjudicata and that
particular decided issue cannot be raised again in a subsequent
proceeding.
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14. Admittedly, the petitioner/husband is stated to have contracted a
subsequent marriage. However, in this regard the learned counsel clarifies
that he did so because he has old parents and minor children. He
contracted marriage only when the respondent/Samiron Nessa left the
matrimonial house without any justifiable cause.
15. I have also heard Mr. M. K. Hussain, learned counsel for the sole
respondent/wife who supporting his written objection filed in this
proceeding, submits that despite the dismissal of the proceeding under
D.V. Act by the Appellate and Revisional Courts, the respondent would be
at liberty to file a proceeding under section 125 Cr.P.C. It is submitted that
she has cogently testified about facing cruelty and leaving the matrimonial
home and the respondent has made out a case that she did not leave the
matrimonial house without justifiable cause. Learned counsel has also
placed before the court an order of the Hon’ble Supreme Court passed in
the case of Some Nikhil Danani vs Tanya Banon Danani in Special Leave
Petition (Criminal) 6005/2019.
16. In that decision of the Hon’ble Supreme Court, it was held that the
Hon’ble High Court of Delhi was justified in coming to the conclusion that
mere passing of an order under Section 125 Cr.P.C. did not preclude the
respondent from seeking appropriate reliefs under the D.V. Act.
17. I have perused the Criminal Revising Petition and the objection filed
by the sole respondent.
18. Also read the orders of the learned appellate court and this Court
passed in the proceedings pertaining to the D.V. Act in the earlier ground
of litigation between the parties. From the TCR, I have perused the
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relevant portions thereby including the depositions before the learned
court below adjudicating the proceeding under Section 125 Cr.PC. This
provision, inter alia, lays down that:-
“if a wife is unable to maintain herself and the husband having
sufficient means neglects or refuses to maintain her, then the law
under this provision enables her to seek maintenance from her
husband”
19. Needless to say that determining the question of maintenance would
involve determination of the entitlement in law and if the entitlement is
found in favour of the person seeking maintenance, the quantum involves
balancing of capacity and needs of the person seeking to receive
maintenance. To facilitate this process, the Hon’ble Supreme Court has
laid down a host of guidelines in the case of Rajnesh vs Neha and Anr.
reported in (2020) 12 SCC 823. It is also well settled by several decisions
of the Hon’ble Apex Court that an able bodied husband irrespective of his
income is required under law as well as social commitment to provide
maintenance to his wife. As regards to the provisions of the D.V. Act,
though it enumerates several reliefs to an aggrieved person but
entitlement to any of such reliefs is contingent on the aggrieved person
proving by the standard of preponderance of probability that she has
suffered domestic violence of any kind at the hands of the husband. Even
with regard to the provision for maintenance and compensation under the
D.V. Act, the same would be permissible only after the foundational fact of
domestic violence is being proved.
20. On the contrary, a proceeding under Section 125 Cr.P.C. proceeds on
a some more different projectory. Here, the essence of law is inability of
the wife to maintain herself and willful default of the husband in giving her
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such maintenance. If the wife is living separately from the husband, it has
to be seen whether such conduct is justified in the facts and
circumstances of the case as the same has a bearing on the question of
her entitlement.
21. Coming back to the present lis, even if the contention of issue
estoppel in the D.V. proceedings is overlooked, I find from the impugned
judgment and order that the learned court below has held that the wife
was justified in living away from the husband due to his marrying another
woman. The learned court below has also referred to the specific statutory
provision under section 125 of the Cr.P.C. in this regard.
22. In this backdrop, I go back to the depositions placed before the
learned court below. I find that all the three witnesses including
respondent/wife have stated that the petitioner/2nd party contracted 2nd
marriage with another women named therein. From the cross-examination
I find that she has expressed ignorance about the date of when such
marriage was contracted by her husband.
23. PW-2, who happens to be the related brother of the respondent and
PW-3, who is another relative have also stated about the subsequent
marriage of the husband. PW-2 and 3 have also not been able to state the
date of such marriage. From the testimony of DW-1/petitioner it emerges
from his cross-examination that he has contracted second marriage. There
is no evidence which reveals that the marriage of the petitioner with the
respondent/Samiron Nessa has been dissolved. Despite the fact that PW-1
together with PW-2 and 3 could not state the exact date of second
marriage, it also does not emerge from their testimonies that any such
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marriage was solemnized after dissolution of her marriage with the
petitioner.
24. Therefore, in my considered opinion the learned court below has not
committed any error in coming to this finding that the petitioner has
contracted 2nd marriage. The explanation to Section 125(3) may be
reproduced herein below:
“Section 125(3) of the Code of Criminal Procedure (CrPC) deals with
the enforcement of maintenance orders. If a person fails to comply
with a maintenance order without sufficient cause, this section
empowers a Magistrate to issue a warrant for the recovery of the
due amount and, if necessary, sentence the defaulter to
imprisonment.”
25. Thus, I find it is specifically provided that contracting of marriage
with another women or keeping a mistress would be a just ground for a
wife’s refusal to live with her husband. This principle though enacted years
back, is even more compatible with the norms of a modern society. Even,
if personal law of a person permits him to contract a subsequent marriage
with another woman during the subsistence of present marriage, the
same would still be a valid ground for a women in modern times to refuse
to live with her husband.
26. Thus, I find no infirmity in the finding of the learned court below
with regard to point No.1. It is clear from the testimony of PW-1 that after
she left his company, he has not paid any maintenance . He denied the
contention that he is a mason earning Rs.20,000/- per month, further
stating that he is actually a daily labour earning Rs.5,000/- to Rs.6,000/-
per month. He also denied the suggestion about the wife not earning
Rs.8000/- to Rs.9000/- from tuition. Thus, it is clear from the evidence
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before learned court below that the petitioner/husband is not bereft of
income though from the facts emerging, he also happens to be a
economically weak person by the standards of the present times.
27. In the proceeding before the learned court below, the wife has
sought monthly maintenance of Rs.7000/- but she was granted
Rs.2,000/-. In her testimony in paragraph 9, she has deposed that she has
no income to maintain herself.
28. In the backdrop of the said materials and in view of the finding of
the learned court below with regard to point No.1 which are found to be
correct I also hold that the learned court below has rightly held in the
affirmative about the entitlement of the wife to receive maintenance. The
petitioner husband has claimed to be a labour earning Rs.4000/- to
Rs.5000/-. The learned counsel for the petitioner submits that he has
minor children from his earlier deceased wife and also old parents to look
after. Though the respondent/wife has contended that her husband is a
mason earning Rs.20,000/- but the same has been denied by him.
29. Learned counsel for the petitioner has submitted that at the time of
this proceeding before the learned court below, income affidavits from
both sides were not submitted; therefore, the learned court below as well
as this Court do not have the benefit of having looked at the income, if
any, of both sides by way of an affidavit. It is pointed out by the learned
counsel for the petitioner that during this proceeding the order granting
maintenance amount of Rs.2000/- per month was stayed subject to
payment of Rs.1000/- which the petitioner has been paying.
30. Balancing the equities on both sides, I came to the considered
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opinion that keeping in mind the contended occupation and income of the
husband a monthly maintenance of Rs.1500/- would meet the ends of
justice.
31. Needless to say that the statutory provision itself enables a
litigant/wife to seek enhancement of maintenance due to change of
circumstances, which she would be at liberty to invoke, if the situation so
requires.
32. At this stage, the learned counsel for the petitioner prays that the
cost of Rs.5,000/- imposed on the petitioner by the learned court below
may be set aside as he is a poor person.
33. The said prayer is accepted and the cost of Rs.5000/- is hereby set
aside.
34. Thus, the impugned judgment and order 17.02.2024 passed by the
learned Additional CJM, Goalpara in case No. MCR 43/2021 s hereby
upheld and confirmed, subject to the modification of the maintenance and
the order with regard to the cost.
35. As per the governing principle laid down in Rajnesh vs Neha (supra)
the maintenance would be payable from the date of the maintenance
petition.
36. The instant criminal revision stands disposed of
37. The TCR should be send back to the learned trial court.
JUDGE
Comparing Assistant