Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Borajorhatjudiciary.gov.in/jmt/2018/dec/jmfcJP/Misc 35-18.pdf · Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora 2 FINAL ORDER

Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora

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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,

JORHAT

Present: Jinti Panging, AJS

Judicial Magistrate First Class, Jorhat

Misc. Case No. 35/2018

u/s 125 Cr.P.C

Pranami Bora …………………………………. 1st party

Versus

Raju Kumar Bora ……………………………. 2nd party/Opposite

Party

Advocates:

For the 1st party: Sri SudiptaNayanGoswami, Sri D. D. Neog, Sri

K. M. Goswami, Smti. LakhimiGogoi

For the 2nd party: Sri Ranjan Dutta, Smti. DeepsikhaGayan, Sri

RupjyotiGogoi

Evidence recorded on: 28.05.2018, 15.06.2018, 07.07.2018,

24.07.2018, 30.08.2018, 09.10.2018, 29.10.2018

Argument heard on: 06.12.2018

Judgment delivered on: 19.12.2018


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FINAL ORDER

1. The case of the petitioner, Smti. Pranami Bora (hereinafter

referred to as the 1st party), in brief, is that she got married to

Sri Raju Kumar Bora (hereinafter referred to as the 2nd party)

on 21.04.2007 as per Hindu rites and rituals at Jorhat and after

solemnization of their marriage, both parties have lived

together as husband and wife at the residence of the 2nd party.

That after six months of the marriage, the 2nd party began to

rebuke the 1st party with filthy language and inflicted mental

torture upon the 1st party. That the 2nd party was never

respectful towards the wedlock with the 1st party. That even

during the pregnancy of the 1st party, the 2nd party physically

assaulted her apart from subjecting her to mental torture. That

the 1st party suffered a severe emotional breakdown during her

pregnancy. That days passed in this way and bearing all the

tortures, the first party gave birth to a baby boy. That after 4

days of her delivery, the 1st party was released from the

Hospital with stitches as she had to undergo a surgery for

giving birth to her baby. That on the 6th day of her delivery,

while the 1st party was residing at her paternal house, the 2nd

party quarreled with her for a silly reason and the 2nd party

kicked on the abdominal part of the 1st party for which the 1st

party sustained wound injury and she was taken to A.G.

Nursing Home for undergoing stitches on her wound. That the

things went complicated since after their marriage but the 1st

party kept on tolerating all such inhuman tortures and

behaviour for a long time and concealed these secrets from her

parents. That the 2nd party is a habitual drunkard and a

habitual gambler and never respected the honour and dignity

of the 1st party. That the 1st party being the married wife of the

2nd party patiently tolerated all such inhuman tortures of the 2nd


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party with a hope that the good sense would prevail one day

and she would be able to lead a happy conjugal life but all her

hopes and aspirations were frustrated when the cruel behaviour

of the 2nd party increased bit by bit. That the tortures and

abuse of the 2nd party are so extreme and unbearable that the

1st party had to go to the police station one day for protection

and safety. That the 2nd party slapped the 1st party several

times and also assaulted her with a chair on that day. That the

1st party was again subjected to mental and physical cruelty

apart from being deprived of her rights as a married woman

and was compelled to leave her matrimonial home on

31.03.2017. Thereafter, the 1st party resorted to judicial

redressal and a Misc. Case was filed for maintenance of herself

and her son but the 2nd party proposed to take the 1st party

back with a promise to resume conjugal life again. That the 1st

party also accepted the proposal as she was sincerely desirous

to lead a happy conjugal life but after few days of her return to

her matrimonial house, the 2nd party inflicted physical torture

upon her again on 18.11.2017 but the 1st party tolerated such

behaviour on that day. But again on 17.12.2017, the 2nd party

slapped the 1st party without any reason, beat her mercilessly

compelling her to leave her matrimonial house again and since

then, the 2nd party never came to take her back to her

matrimonial home till date. That the 1st party is taking shelter

with her parents, who are also not physically sound and as

such, the 1st party is being compelled to file a case against the

2nd party. That the 1st party has no source of income. That the

2nd party has neither taken any steps to bring his wife and son

back nor paid any maintenance amount to both the 1st party

and her son and for which the 1st party is suffering from a

severe financial hardship. That the son of the 1st party is a

student of Carmel School, Jorhat and is doing well in his studies

and extra-curricular activities. That the 1st party is also

prevented from visiting her matrimonial home. That the 2nd


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party is leading a happy affluent life with abundant wealth and

income amounting to Rs.35,000/-(Rupees thirty five thousand)

only per month. That the 2nd party is also earning his income

from Agriculture apart from having a job. Hence, the 1st party

prayed to direct the 2nd party to pay a monthly maintenance

allowance of Rs. 15000/- (Rupees fifteen thousand) only per

month towards her and her son.

2. After filing of the petition, summon was issued to the 2nd

party. That the 2nd party duly received notice from this Court

and entered his appearance and has filed his written statement

against the 1st party. The 2nd party has stated that the petition

filed by the 1st party is not maintainable in law as well as on

facts and the allegations sought to be raised by the 1st party

through her petition does not fulfill the requirement of section

125 Cr.P.C. and as such the petition is liable to be dismissed in

limine. That the 2nd party is not admitting any of the averment

of the petition beyond what are specifically stated therein and

the matters which are strictly in conformity with the records.

That the 2nd party admitted that he entered into wedlock with

the 1st party on 21.04.2007 as per Hindu rites and rituals at

Jorhat and after solemnization of their marriage, both parties

have lived together as husband and wife at the residence of the

2nd party. That the allegations as made in the petition from para

4 to para 13 are stoutly denied by the 2nd party. That the 2nd

party asserts he is a respectable person in the society and has

no such records of such habitual gambling or drinking. That the

2nd party asserts the 1st party has inflicted physical and mental

torture upon the 2nd party. That the 2nd party asserts the 1st

party tried to beat his aged mother but the 2nd party kept quiet

because he did not want a bad name for his wife in the society.

That the 2nd party asserts on the knowing about the 1st party,

he questioned her in an angry tone and the 1st party being

afraid of the 2nd party of being beaten up filed a complaint in


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the police station. That the 2nd party asserts the 1st party left

her matrimonial home on 31.03.2017 on her own will and took

their son along with her and filed a Misc. Case for maintenance.

That the 2nd party went to her parents’ home and asked the 1st

party to come back to his house and to leave the other person

and the 1st party accepted his proposal to resume the conjugal

life. That after some days, the 1st party again started her extra-

marital relationship with that other person and one day on

17.12.2017, she again left his house and went to her parental

house. That the 2nd party on various occasions went to the

parental house of the 1st party to bring her and their son back

home but the 1st party refused to talk to him and did not allow

him to enter inside their house and the 1st party refused to

break her relationship with that other person and to resume the

conjugal life. That the 2nd party asserts that their son is

studying in Christ King School and not in Carmel School. That

the 2nd party asserts that the 1st party is welcomed in her

matrimonial home any time but the 1st party refused to return

and also does not allow him to talk to his son. That the 2nd

party works in a Private Sector Company and he does not earn

Rs.35,000/- per month and he also have to look after his old

aged mother and father. That the demands of the 1st party is

very high and she wants to lead a very luxurious life but the 2nd

party is unable to fulfill all her desires and therefore, on

17.12.2017, she again left her matrimonial home and went to

her parents’ house and maintained an illegal relationship with

some other person. Hence, the 2nd party prayed to dismiss the

petition filed by the Petitioner/1st Party.

3. To prove her case, the 1st party adduced the evidence of

herself and two other witnesses. The 2nd party adduced the

evidence of two witnesses in his defence. I have gone through

the case record and heard the argument advanced by the

learned Counsels of both the parties.


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Points for Determination

i) Whether the 1st party is the legally married wife of the 2nd

party?

ii) Whether the 2nd party having sufficient means to maintain the

1st party and her child refused or neglected to maintain the 1st

party and her child?

iii) Whether the 1st party has sufficient ground for deserting the

2nd party and living separately from the 2nd party and whether

the 1st party and her child are entitled to get maintenance from

the 2nd party?

Discussion, Decision and Reasons thereof

Point No. (i)

4. PW1, the 1st party Smti.Pranami Bora stated in her evidence that

the 2nd party is her husband. She further stated that she

entered into wedlock with the 2nd party on 21.04.2007

according to Hindu rites and customs. She also stated that the

on 05.08.2008 a male child was born to her out of their

wedlock.

5. DW1, the 2nd party in his evidence stated that he entered into

wedlock with the 1st party on 21.04.2007 according to social

customs and traditions and on 05.08.2008 a male child was born

to them out of their wedlock.


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6. In the light of the above evidence, it is an admitted fact that the

1st party is the legally wedded wife of the 2nd party and both are

parents of a girl child born out of the wedlock.

7. Hence, this point no. (i) is decided in affirmative, in favour of

the 1st party.

Point No. (ii) and (iii):

8. The 1st party stated in her evidence thatin her evidence that the

second party used to physically torture her under the influence

of alcohol. She also stated that after five days of her delivery,

the second party assaulted her and as her stitches were fresh,

she become unconscious and she was taken to AG Nursing

home for treatment. And thereafter, the torture upon her by the

second party increased gradually. She also stated that she took

a loan of Rs. 1,00,000/- ( Rupees one lac) from

KanaklataMahila Urban Bank for the second party. And

accordingly the second party bought a Maximo Mini Van but the

second party sold the vehicle latter and as he could not repay

the loan again she took a loan of Rs. 40,000/- (Rupees Forty

thousand) from Bandhan Bank for the second party. She also

stated that on one occasion, police arrested the second party

from a leaker shop and he was later released on bail. She also

stated that on various occasions, she and her father-in-law

used to go to those leaker shops to bring the second party back

home. She also stated that in the year, 2016, in the month of

April on one occasion while she was having her food, the

second party threw a pressure cooker towards her and

thereafter, he assaulted her with his belt by taking her inside

the room. And thereafter, again he dragged her outside from

room and strangulated her with a water pipe and when her


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mother-in-law came to rescue her, the second party poured hot

water over her body. She also stated that on 31.03.2017, she

was late on reaching home from her tuition classes and on

reaching home, the second party slapped her and also

assaulted her with a dining chair and thereafter on the same

night she went to Nimati O.P. and lodged an ejahar. She stated

that police went and brought her child from the house of the

second party and gave his zimma and on the next day, in

presence of the villagers and police personnel both entered into

an agreement and thereafter, she returned back to her parental

house. She stated that after one year, she received a notice

from the second party in relation to a divorce case filed against

her for which she had to file a maintenance case against the

second party but second party entered into a compromise with

her for which she withdraws the case. She stated that

thereafter, the second party took her to a rented house and

they resided there till 18.12.2017. She further stated that on

18.12.2017 the second party assaulted her very badly for which

she had to return from the rented house to her parental home

on 19.12.2017 and since then she and her child are residing in

her parental house. She also stated that the second party had

not paid any maintenance towards her and her child and has

neither approach to take them back home. She also stated that

her mother is repaying the loan taken by her for the second

party. She also stated that the second party is parts supervisor

at Honda showroom, Jorhatand she has no income of her own.

9. PW2, BharatiSaikia Bora in her evidence stated that first party is

her daughter and the second party is her son-in-law. She stated

that at present the first party is staying with her. She also

stated that the second party used to torture her under the

influence of alcohol. She stated that they had lodged a case

against the second party. She also stated that as the second

party used to torture her, she brought the first party back

home. She also stated that the second party has not paid any


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maintenance to the first party and her child. She also stated

that the second party is working at the Honda Dealer. She also

stated that the second party has not approached the first party

to take her daughter and her child to his home.

10. PW3, PranobSaikia in his evidence stated that the first party is

his niece. He also stated that the second party used to torture

the first party for negligible reasons. He also stated that the

first party had also filed a case against the second party. But all

entered in to a compromise, the first party withdraw the case.

He also stated that thereafter, again both the parties started to

reside together at a rented house but after three months, the

second party again started to assault the first party for which

the first party had to return back to her parental house and

since then she and her child have been residing in her parental

house. He also stated that the second party had not paid any

maintenance to the first party and to her child. He also stated

that the second party is working at Honda Dealer and first

party had no income of her own.

11. DW1, Raju Kr. Bora in his evidence stated that while he was

working at J.B. Honda showroom, caught fire to which he was

jobless and so the first party arranged a loan from

KanaklataMahila Urban Bank out of which amount he bought a

Maximo Mini Van. He also stated that after sometime, he sold

the vehicle. He also stated that thereafter. He joined a job at

glory Honda. He also stated that the first party had earlier

lodged a case in the NimatiOut Post and thereafter they

entered into an agreement at P.S. that he would pay the loan

amount of the Bandhan Bank taken by the first party and also

he would bear the expenses of the studies of their child. He

also stated that on 31.03.2016 at about 9 P.M, when he

reached home, the first party was not present as she was

taking tuition classes for which he called her over phone and

questioned her about the reason for being late. He also stated


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that the first party has an illicit relationship with a person

whom she called her brother since the year 2016. He also

stated that he had check the phone of the first party and saw

some messages exchanged between the first party and the

person. He stated that the first party again lodged a case in

Jorhat P.S., but it was withdrawn later. He further stated that

from 20.09.2017 he along with the first party started to reside

at a rented house but again he got a recording from the phone

of the first party where he heard a conversation between the

first party and the person with whom she has an affair. He also

stated that on 19.12.2017 while he was shopping for a function

which was going to be held at school of his son, the first party

called him and told him that she is going to her parental house

and since then they are staying separately.

During cross-examination, he stated that the first party

and her son are presently staying at the parental house of the

first party. He also stated that the first party has not

approached him for receiving any money from him and he has

not approached the first party for giving any maintenance to

her and her child. He also stated that the person with whom

the first party is maintaining an illicit relationship is known to

them and his parents have visited his house. He also stated

that he is not aware if the first party had admitted at Nimati

O.P. He also stated that he is not aware if the first party was

admitted at City Orthopedic hospital and Research Centre. He

also stated that the first party used to share a good relation

with his mother. He also stated that on 01.04.2016, he had put

his signature on the compromise agreement where it is also

stated that he used to torture the first party. He also stated

that he has never tried to bring the first party back home. He

also stated that he had heard that his son is at present

studying at Christ King High school but he is not well aware of

it. He also stated that he is not aware about the transportation

of his child from school. He also stated that he has not


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submitted any SMS (messages) and recording to the police. He

also stated that he has not paid any maintenance towards the

first party and his son.

12. DW2, Smti. Ranjima Borah in her evidence stated that the 1st

party is her daughter-in-law and the second party is her son.

She further stated that the marriage between them went well

till 2016. She also stated that from 2012, the first party

developed a brother-sister relationship with a boy and she

invited that person to their home. She also stated that she and

her husband had visited the house of thatpersonnamely

AnantaKakoty at Lakhimpur. She also stated that on one

occasion, the person namely AnantaKakoty came to stay over

their house. She stated that on the next day morning her son

i.e., second party told her that he had seen the first party and

AnantaKakoty together in the bathroom. She also stated that

on 31.03.2016 the first party came late home and on being

questioned by the second party, she become furious and

pushed her and went out of the house through back door.

Thereafter, she lodged a case at the Nimati O.P. alleging that

the second party had assaulted her and from the P.S., the

mother of the first party took her back home and since then

she has been residing in her parental house. She further stated

that after this incident, again both the parties started to reside

together at a rented house and after residing for three months,

the first party left the rented house and went back to her

parental house. She also stated that the second party is paying

maintenance to her son.

13. During cross-examination, she stated that she had not seen the

incident when the first party was found together with

AnantaKakoty inside the bathroom. She also stated that the

second party is a service man. She also stated that she had not

questioned AnantaKakoty about his illicit relationship with the

first party though she knows him well. She also stated that she

had not entered into any quarrel with the first party. She also


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stated that on 27.03.2017 she performed a Bihu Dance with the

first party at a function. She also stated that she is not aware

as to what happened between the first party and second party

between the time-period from 27.03.2017 to 31.03.2017. She

also stated that the first party had lodged a case against the

second party alleging that the second party is to torture her.

She also stated that she and her husband had not approached

the first party to bring her back home.

14. In the instant case, the 1st party asserted that the 2nd party

used to torture the 1st party which also finds corroboration from

the evidence of PW2 and PW3. The 1st party also stated that on

31.03.2017, the 1st party lodged a case against the 2nd party for

assaulting her and this piece of evidence finds corroboration

from the evidence of PW2. Moreover, DW1 and DW2 specifically

admitted that the 1st party had lodged a case against the 2nd

party and the 1st party later withdrew the case as the 2nd party

entered into a compromise with the 1st party. The 1st party also

stated that since the day she returned to her house, the 1st

party has been residing in her maternal house along with her

son, which also finds corroboration from the evidence of PW2

and PW3. DW1 and DW2 also admitted the said fact. The 1st

party also stated that since the day she left the 2nd party, the

2nd party has not approached her and has not taken care of her

well-being and also has not paid any maintenance towards the

1st party and her child, which also finds corroboration from the

evidence of PW2 and PW3.Moreover, the 2nd party specifically

admitted that he has not provided any maintenance to the 1st

party and her child. The defence witnesses could not state

anything contrary to the statements of the 1st party. Defence

side could not shake or demolish the evidence of the 1st party.

The defence side failed to negate the statements of the 1st

party and her witnesses. The 2nd party and DW2 stated that the

1st party has an illicit affair with a person namely AnantaKakoty

but the said person was not examined by the defence side, as


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he was the relevant witness who could give a glimpse of the

allegation. Moreover, DW2 specifically stated that the 1st party

has not entered into any quarrel with her. Moreover, the 2nd

party has admitted that the 1st party used to share a good

relation with the mother of the 2nd party. DW2 has stated that

the 2nd party has told her that he had seen the 1st party and

the person namely AnantaKakoty together in the bathroom but

the 2nd party has failed to state about it. Moreover, the 2nd party

has not produced any such evidence to prove the allegation

against the 1st party. Moreover, the 2nd party could not state

anything against the behaviour and nature of the 1st party,

which depicts that the 1st party was trying hard to maintain her

conjugal life with the 2nd party. Moreover, from the evidence

adduced by DW1 and DW2, it is evident that an incident took

place on 31.03.2016, which also gives a picture of the alleged

incident by the 1st party.Hence, it is clear that the 2nd party

used to torture the 1st party and has not paid any maintenance

towards the 1st party and her child.

15. Also, in the light of the above discussion, it is clear that the

2nd party has a monthly income and he has the capacity to

maintain his wife and her child. On the other hand, it is not a

disputed fact that the 2nd party is an able-bodied person and he

has income to maintain himself and his child. In the case in

hand, the 1st party asserted that the 2nd party neglected her to

maintain her being a married wife and the 2nd party could not

state that he has provided any maintenance to his wife.

Moreover, the 2nd party specifically stated that he has not tried

to bring the 1st party back home.He also could not produce any

cogent evidence to show that he used to maintain the 1st party

and her child. As it has been established earlier that the 1st

party is a legal wife of the 2nd party, so the 2nd party is legally

bound to maintain his wife and her child but he failed and all

these acts of the 2nd party amounts to neglect and refusal on

his part in maintaining the 1st party.


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15. The acts and conducts of the 2nd party as discussed above

clearly depicts that he has neglected and refused to maintain

the 1st party and her child and pushed her into a life of

uncertainty. The Hon’ble Supreme Court has dictated in the

case of BimalaKumari vs. Veruswami, (1991) 2 SCC 375,

that the object of the provision of the section 125 Cr.P.C. is to

prevent vagrancy of destitute women so that they may not

become victim of the circumstances. In the instant case, the 1st

party stated that she has no source of income on her own,

which was not denied by the 2nd party and the witness of the

2nd party. In BhagwanDutt vs. Kamala Devi (1975) 2 SCC

386, it was observed that the wife should be in a position to

maintain a standard of living which is neither luxurious nor

penurious because “unable to maintain herself” does not mean

that wife must be absolutely destitute before she can apply

under the section.

16. As regards the income of the 2nd party, it is clear from the

evidence of the defence witnesses that he has a monthly

income. Moreover, DW1 has stated that he works at Glory

Honda. So, I am of the view that he is capable of giving

maintenance to the 1st party and her child because it is not the

case of the 2nd party that he is incapable of earning nor it is his

case that he is incapacitated to earn because of his physical

disability, etc. According to section 125 (4) Cr.P.C, “no wife

shall be entitled to receive maintenance allowance from

her husband under this section if, without any sufficient

reason, she refuses to live with her husband………”. But

in the instant case in hand, the 1st party has sufficient reason to

desert her husband.

17. In view of the above discussions and the reasons stated, I

am of the opinion that the petitioner and her child are entitled

to get maintenance from the opposite party. In these facts and

circumstances, Point No. (ii) & (iii) are decided in favour of the

1st party.


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ORDER

18. In the result, the petition filed by the petitioner is allowed on

contest.

The petitioner and her child are entitled to get

maintenance from the opposite party.

Considering all aspects and in particular, the status,

social background, cost of living and high index of essential

commodities and capabilities of the other side, the opposite

party is hereby directed to pay Rupees 6000/-(Six thousand)

only per month towards the 1st party and her child of the 1st

party as maintenance allowance from the date of this order.

Let the copy of the judgment be furnished to the

petitioner free of cost.

Given under my hand and seal of this Court on this the 19th day

of December, 2018 at Jorhat.


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Jinti Panging

Judicial Magistrate First Class

Jorhat

APPENDIX

A. List of witnesses for the 1st party :

1. PW1 ………………. Pranami Bora

2. PW2 ………………. BharatiSaikia

3. PW3 ………………. PranobSaikia

B. List of witnesses for the 2ndparty :

1. DW1................... Raju Kr. Borah

2. DW2................... Ranjima Borah


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Jinti Panging

Judicial Magistrate First Class

Jorhat

19.12.2018: Both the parties are present.

Today the matter was fixed for final order.

The petition filed U/S 125 Cr.P.C by the 1st party is allowed.

The 2nd party is directed to pay a maintenance allowance of

Rs.6000/-(Rupees six thousand) only per month towards the 1st

party and her child from the date of the order.

Let a free copy of the judgment be provided free of cost to the

1st party.

Accordingly, the case is disposed of on contest.

Documents

Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Borajorhatjudiciary.gov.in/jmt/2018/dec/jmfcJP/Misc 35-18.pdf · Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora 2 FINAL ORDER