Gauhati High Court
Sumita Mazumdar vs Debasish Mazumdar on 30 January, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/11
GAHC010137682022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./362/2022
SUMITA MAZUMDAR
C/O MR. SUBHASH BHATTACHARJEE,
HOUSE NO. 11, SOUTH BYE-LANE NO. 01,
LACHITNAGAR, GUWAHATI-781007,
DIST. KAMRUP (M), ASSAM
VERSUS
DEBASISH MAZUMDAR
SON OF LATE DULAL MAZUMDAR
PERMANENT RESIDENT OF
C/O SRI MANIK MAZUMDAR
KANAKLATA NIWAS, HOUSE NO. 9,
JYOTI PATH,
BHASKARNAGAR
P.S. FATASIL AMBARI
GUWAHATI- 781018, ASSAM
PRESENT ADDRESS-
DR. DEBASISH MAZUMDAR
FLAT NO. P-1405,
PRATEEK WISTERIA, SECTOR-77, NOIDA
PIN- 201304
UTTAR PRADESH.
OFFICE ADDRESS-
DR DEBASISH MAZUMDAR
SENIOR PRINCIPAL
SMART ANALYST,
DLF QUTUB ENCLAVE, FIRST FLOOR, DLF PLAZA TOWER, DLF PHASE 1,
GURUGRAM,
HARYANA -122002
Advocate for the Petitioner : MR. M NATH, MS. S RAJKUMARI,MR. A ROY
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Advocate for the Respondent : MR. K BHATTACHARJEE, MR. S DAS,MS. B TALUKDAR
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT & ORDER (CAV)
Date : 30-01-2025
Heard Mr. M, Nath, learned counsel for the petitioner. Also heard Mr. K.
Bhattacharjee, learned counsel for the respondent.
2. By filing this application under section 397, 401 read with section 482 of
the Code of Criminal Procedure, 1973, the petitioner has prayed for setting
aside the Judgment and Order dated 12/04/2022 passed in F.C. (Crl.) 361/2013
by the Learned Principal Judge, Family Court No. 1, Kamrup (M) at Guwahati.
3. The brief facts of the case is that the petitioner got married with the
respondent on 27/01/2008 as per Hindu rites and rituals at Guwahati and their
marriage was registered before the Marriage Officer, Kamrup (Metro) whereby a
certificate was issued under No. 158 dated 28/01/2008. However, after few
months of their marriage, the respondent and his family members began to
quarrel with the petitioner over every trivial matter. The respondent and his
family members used to torture the petitioner both mentally as well as
physically by using abusive languages. The mother-in-law and sister-in-law of
the petitioner forcefully snatched away all the jewelleries, clothes and valuable
gifts which were given by the parents and other relatives of the petitioner and
further started demanding money and jewelleries from the parents of the
petitioner.
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4. On another occasion, the grandfather of the petitioner became seriously ill
and it was his last wish to see his granddaughter for the last time. However, the
respondent, his sister and mother did not allow the petitioner to come down to
Guwahati to see her grandfather for the last time. Moreover, the respondent and
his mother started demanding a flat from the father of the petitioner and
threatened the father of the petitioner that if the flat is not arranged, she will
make the life of the petitioner a hell. Thereafter, on several occasions, the
respondent and his family members pressurised the petitioner for money and
tortured her, even refused to keep the petitioner with them. Thereby, the
petitioner lodged an FIR before the Paltan Bazar P.S. and a case was registered
vide Paltan Bazar P.S. Case No. 1091/11 u/s 498A IPC, and started to live in the
house of her parents. Thereafter, the respondent initiated divorce proceeding in
the Family court, Delhi. The petitioner did not receive any notice regarding the
divorce proceeding and by making false and misleading statement the
respondent obtained an ex-parte Judgment. The petitioner came to know about
the said Judgment only when she sent a notice to the respondent for restitution
of their conjugal rights. Thereafter, the petitioner filed a petition for modification
of the ex-parte divorce decree which was rejected by the learned Family Court,
Delhi. The petitioner preferred an appeal before the Hon’ble Delhi High Court
which was also rejected on the ground of delay. Thereafter, the petitioner
approached the Hon’ble Supreme challenging the Judgment and Order passed
by the High Court of Delhi. However, the SLP was withdrawn with a liberty to
approach the appropriate court praying for maintenance. Accordingly, the
petitioner approached the family court, Kamrup(M) praying for grant of
maintenance from the respondent vide FC (Crl) case no. 361/ 2013. The
principal Judge, Family Court granted interim maintenance amounting to Rs.
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12,000/- per month to the petitioner. After hearing both sides, the respondent
was directed to pay a sum of Rs. 15,000/- per month to the petitioner as
maintenance.
5. Being highly aggrieved and dissatisfied with the Judgment and Order
dated 12/04/2022, the petitioner has preferred this revision petition.
6. It was urged by learned counsel for the petitioner that the respondent has
been working in the post of manager in TCS. As per the document available in
the record in the year 2014 his gross yearly income was Rs. 23,33,820/-. This
income was his taxable income. In addition to that the respondent has also non
taxable income. The petitioner has no income of her own. Her father has been
retired from his service. Under such backdrop, the petitioner is entitled for more
amount of maintenance.
7. It is also the submission of learned counsel for the petitioner that the
Hon’ble Supreme Court in its various pronouncement granted maintenance to
the wife @ more than 25% of the net income of the Husband. Here in the
instant case, the learned trial court without considering the law laid down by the
Hon’ble Apex court and inspite of having net income of the respondent/
husband more than Rs. 2,50,000/- per month, the trial court has granted only
Rs. 15,000/- monthly maintenance to the petitioner which is much below the
ratio laid down by the Hon’ble Apex Court. Hence, learned counsel for the
petitioner has prayed for enhancement of monthly maintenance of the petitioner
by setting aside the Judgment of the trial court dated 12/04/2022.
In support of his submission, learned counsel for the petitioner has
placed reliance on the following case laws –
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a. (2021) 2 SCC 324 (Rajnesh vs. Neha and another)
b. (2017) 14 SCC 200 (Kalyan Dey Choudhary vs. Rita Dey
Choudhury)
8. On the other hand, the case of the respondent is that he has been paying
the monthly maintenance allowance @Rs. 15,000/- per month to the petitioner
regularly without any break. The respondent states that the marriage between
the petitioner and the respondent were dissolved by a decree of divorce on
20/11/2012 and thereafter following due process of law the respondent got
remarried with Smti. Mousumi Nath on 24/03/2014 and out of their wedlock, a
female child was born. The respondent further states that he has immense
responsibility to take care of, as he has family members constituting himself, his
wife, his daughter and old age mother and even loans to pay. The respondent
being the only earning member of his family, he has to meet the following
monthly expenses – Maintenace allowance, EMI of home loan, EMI of Home
renovation loan, LIC (self) premium, LIC (wife) premium, Society maintenance,
Health Insurance, Child education, domestic help for old aged mother and
children, driver and petrol, food, medicine etc. Furthermore, the respondent
states that the petitioner having LLB degree and being an advocate by
profession, must have her own income. Hence, relying on the aforesaid
grounds, enhancement of maintenance is objected by the respondent.
In support of his submission, learned counsel for the respondent has
relied on the following case law –
a. (2010) 15 SCC 372 (Bhushan Kumar Meen vs. Mansi Meen @
Harpreet Kaur).
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9. Having heard the learned counsel for the parties, the admitted fact is that
the respondent has been working at TCS and his monthly salary is more than
Rs. 2,50,000/-. The petitioner has prayed for enhancement of maintenance
allowance from Rs. 15,000/- per month to the tune of Rs. 1, 25,000/- per
month.
10. At the outset, this Court seeks to deliberate upon the scope of a revision
petition under Sections 397/401 Cr.P.C. which has been succinctly explained in
Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460. The relevant portion
of the said judgment has been reproduced as under:
“12. Section 397 of the Code vests the court with the power to call for and
examine the records of an inferior court for the purposes of satisfying
itself as to the legality and regularity of any proceedings or order made in
a case. The object of this provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-founded error and it
may not be appropriate for the court to scrutinize the orders, which upon
the face of it bears a token of careful consideration and appear to be in
accordance with law. If one looks into the various judgments of this Court,
it emerges that the revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own merits….”
11. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri,
(1999) 2 SCC 452, the Supreme Court had observed as under:
“5. Having examined the impugned judgment of the High Court and
bearing in mind the contentions raised by the learned counsel for the
parties, we have no hesitation to come to the conclusion that in the case
in hand, the High Court has exceeded its revisional jurisdiction. In its
revisional jurisdiction, the High Court can call for and examine the record
of any proceedings for the purpose of satisfying itself as to the
correctness, legality or propriety of any finding, sentence or order. In
Page No.# 7/11other words, the jurisdiction is one of supervisory jurisdiction exercised by
the High Court for correcting miscarriage of justice. But the said revisional
power cannot be equated with the power of an appellate court nor can it
be treated even as a second appellate jurisdiction. Ordinarily, therefore, it
would not be appropriate for the High Court to reappreciate the evidence
and come to its own conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as the Sessions Judge
in appeal, unless any glaring feature is brought to the notice of the High
Court which would otherwise tantamount to gross miscarriage of justice.
On scrutinizing the impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation to come to the conclusion
that the High Court exceeded its jurisdiction in interfering with the
conviction of the respondent by reappreciating the oral evidence. The
High Court also committed further error in not examining several items of
evidence relied upon by the Additional Sessions Judge, while confirming
the conviction of the respondent. In this view of the matter, the impugned
judgment of the High Court is wholly unsustainable in law and we,
accordingly, set aside the same. The conviction and sentence of the
respondent as passed by the Magistrate and affirmed by the Additional
Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds
furnished stand cancelled. The respondent must surrender to serve the
sentence.”
12. In a 2018 judgment of the High Court of Andhra Pradesh, titled Dr. J.
Muralidhar Goud v. State of Telangana rep. by its Special Public
Prosecutor for CBI, 2018 SCC OnLine Hyd 470, though the matter therein
was not related to grant of maintenance, the principles underlying scope of
revision under Sections 397/401 Cr.P.C. have been comprehensively discussed.
The same has been reproduced below:
“17. Section 397 Cr.P.C. empowers the High Court and a Sessions
Judge to call for and examine the record any proceedings before
any inferior criminal court situate within its or his local jurisdiction
for the purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order recorded or
passed and as to the regularity of any proceedings of such inferior
Court. This section simply lays down the matters which a revisional
Page No.# 8/11Court may investigate. The object of this section in conferring the
power of revision is that the revisional Court is given a supervisory
jurisdiction to secure the correction of a patent error or defect which
has resulted in miscarriage of the justice and this may arise from
misconception of law or irregularity of procedure. But, the power
conferred by this section should not be so exercised as to convert it
into a right of appeal, where such a right is excluded by the Code.
But unlike Sections 100 and 115 of the Cr.P.C, the power of revision
under Cr.P.C. is not so rigidly circumscribed, within the rule requiring
clear question of law or of jurisdiction, as to exclude this Court’s
jurisdiction to interfere where the conclusions of the court below are
grossly erroneous and even though grave injustice may have
resulted therefrom. Thus, it is clear from the language used in
Section 397 Cr.P.C. that the revisional Court can exercise power only
to call for record to satisfy itself as to the correctness, legality or
propriety of any finding, sentence or order as to the regularity of the
proceeding. It is a correcting Court. A revisional Court can revise the
order of an inferior criminal Court not only on the ground of
jurisdiction, but also on the ground that it is illegal or erroneous.
„Legality‟ and „propriety‟ in Section 397 Cr.P.C. both include
questions of law as to whether a finding, sentence or order was
legal or proper having regard to the evidence. „Correctness‟ in the
section does not mean that the revisional Court may inquire whether
the finding was acceptable to it on a balance of the evidence
recorded in the Trial Court. The correctness of the finding, sentence
or order also implies a legal defence, such as the finding being
based on no evidence or being incorrect in the sense that the
witnesses may have said. Any finding which is correct on the
evidence must necessarily be held to be proper and the order of
dismissal which follows the finding must be held to be both correct
and proper. No finding can be said to be either correct or proper
when the material on which it is based cannot possibly lead any
reasonable man to arrive at that finding and in such a case, it will be
open to the revisional Court to set it aside and to replace it by what
according to it would be the legitimate finding on the evidence.
Therefore, this Court unless concludes that the findings of the Trial
Court are not legal and proper or correct or regular, the Court can’t
interfere with such order.
18. Section 401 of Cr.P.C. confers a kind of paternal and supervisory
Page No.# 9/11jurisdiction on the High Court over all other criminal Courts
established in the State in order to correct miscarriage of justice
arising from a misconception of law, irregularity or procedure,
neglect or proper precautions or apparent harshness of treatment
which has on the one hand resulted in some injury to the due
maintenance of law and order or, on the other hand, in some
underserved hardship to individuals. (vide Amar Chand Agarwalla v.
Shanti Bose12). The revisional power conferred on the High Court
by Section 401 of Cr.P.C. is discretionary power, has to be exercised
in the aid of justice.
Whether or not the High Court will exercise its revisional
jurisdiction in a given case, must depend upon facts and
circumstances of each case. The discretion conferred on the High
Court by Section 401 of Cr. P.C has to be exercised judicially, on
judicial principles and not arbitrarily. Thus, the jurisdiction of this
Court under Section 401 Cr.P.C. is limited and it cannot be exercised
in a casual manner by this Court and the High Court may exercise
such power only when the Court found that there is a manifest
perversity in the order or the finding recorded by the Inferior Court
is without any evidence or material. In the present case, when the
Inferior Criminal Court followed the procedure in accordance with
law, irrespective of the correctness and legality of the order, this
Court cannot interfere with such orders passed by the Inferior
Court.”
13. It is evident from the above judicial pronouncements that the scope of
interference in a revision petition is extremely narrow. The statutory provisions
under Cr.P.C. bestows upon the High Court jurisdiction to consider the
correctness, legality or propriety of any finding inter se an order and as to the
regularity of the proceedings of any inferior court. It is also well settled that
while considering the legality, propriety or correctness of a finding or a
conclusion, the revisional court does not dwell upon the facts and evidence in a
case at length. It solely considers the material for the purpose of satisfying itself
that the impugned decision is legal and proper with respect to the findings,
sentence and order; it refrains from substituting its own conclusion on an
Page No.# 10/11
elaborate consideration of evidence [Refer to Taron Mohan v. State, 2021 SCC
OnLine Del 312].
14. Having discussed the powers of a Court assuming revisional jurisdiction,
along with the fetters with which it is bound, this Court deems it fit to proceed
to the facts that arise out of the material on record and arguments presented
before it by the learned Counsel, and the law governing these facts.
15. Admittedly, the petitioner has filed an application before the Family Court,
Kamrup (M) u/s 125 Cr.PC (now Section 144 BNSS, 2023) claiming maintenance
from the respondent and accordingly learned Family court after hearing both
sides and considering the documents regarding financial capability of the
respondent to pay the maintenance, fixed the monthly maintenance @ Rs.
15,000/- in favour of the petitioner. Through this criminal revision, the petitioner
has prayed for enhancement of maintenance allowance from Rs. 15,000/- to Rs.
1, 25,000/- per month. There is a specific provision in the Cr.PC i.e., Section 127
(now 146 of BNSS, 2023) for enhancement of the monthly maintenance which
has not been availed by the petitioner. Having gone through the order of the
Family court and the materials on record, this court does not find any reason to
exercise the power of revision since the matter pertains to enhancement of
monthly maintenance made by the wife. It is open for the petitioner to
approach the Family court again and seek alteration of the maintenance
allowance. If sufficient materials are placed before the Family court in support of
such a prayer that will definitely be taken into account at the time of hearing on
the issue.
16. Hence, the revision petition is dismissed, reserving the petitioner’s liberty
to seek remedy u/s 127 Cr.PC (section 146 of BNSS, 2023), if so advised.
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17. With the above observation, the criminal revision petition is disposed of
accordingly.
18. Send back the trial court record.
JUDGE
Comparing Assistant
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