KRISHNA GOSWAMI Vs. SUDHAN GOSWAMI

JUDGEMENT

(1.) THIS Criminal Revision Petition is so preferred by the Petitioner Smt. Krishna Goswami under Section 19(4) of the Family Courts Act, 1984 read with Section 397 Code of Criminal Procedure challenging the propriety of the judgment and order dated 7 -7 -97 so passed in a proceeding under Section -125 Code of Criminal Procedure by the learned Principal Judge, Family Court, Guwahati in Case No. FC (Criminal) 137/92. In the said proceeding the present Petitioner Smt, Krishna Goswami happened to be the first patty whereas her husband Shri Sudhan Goswami hajppened to be the party -opposite party. The operative part of the judgment under challenge runs as under:

(2.) IN the background of the impugned order passed, the case of the present Petitioner Smt. Krishna Goswami is that the learned Court below had erred in not directing the husband -OP as to pay maintenance to her and that the child (Minor girl) should have also been given maintenance of Rs. 500 in place of Rs 400. The prayer portion of this petition so filed by the lady in this revision petition runs as under:

(3.) MR . P.C. Borpujari, the learned Counsel for the Petitioner arguing the case of the Petitioner lady has pressed into service all the points so mentioned in this petition as good grounds for interference with the impugned order and on the line that the husband has in the instant case utterly failed to prove that actual income of the lady out of tuition, how much rent she has to pay for the house and also with regard to the OP having sufficient means of income not only to maintain her child but also his wife the present Petitioner who is not in a position to maintain herself. On the point that the onus lies upon the husband to adduce sufficient evidence on the point of the income of the wife as to exonerate him from paying any maintenance Mr. P.C. Borpujari, the learned Counsel has relied upon some of the reported cases. They are, (1984) 2 GLR page 396 (Dulan Chandra Bora v. Bonalata Bora) particularly Para 12 is referred. It is in this background submitted that true it is that the husband is not liable to pay the maintenance if the wife has got ample income and means of her own and cannot thus be allowed to take measure against the husband filing a petition under Section 125 Code of Criminal Procedure as punitive weapon with vindictive move against her husband but burden is upon the husband to prove that the wife is able to maintain herself, which in the instant case has not absolutely been done. In support of his this contention Reported case, 1988 Cr. L.J. page 125 Orissa (Raibari Bahara v. Maharaj Baribahara) is referred. Mr. Borpujari, the learned Counsel has also referred to, 1933 Cri. L.J. NOC 75 (Bangshilal and Ors. v. Magni Rai and Ors.) and it is submitted that instead of the wife proving the negative the husband is to prove that wife is able to maintain herself. Potential earning capacity of the wife also should not be and cannot be taken into consideration for grant or non -grant of maintenance to her. The lady requires reasonable needs to be fulfilled and for such moderate living in such a case it is for the husband to satisfy the court that the lady had her own income to meet the expenses. Concluding his argument, Mr. Borpujari, the learned Counsel submits that the same in the instant case has been reasonably not proved by the husband and hence the impugned judgment requires interference and maintenance of Rs. 500 per month be awarded to the lady and the maintenance so granted to the tune of Rs. 400 for the child be also enhanced by Rs. 100 per month.