Husband's Failure To Furnish Documents Regarding Informal Employment Won’t Discredit His Evidence Regarding Income: Gauhati High Court
The Gauhati High Court was considering a revision petition directed against the impugned order of the Chief Judicial Magistrate.
Justice Sanjeev Kumar Sharma, Gauhati High Court
While allowing the revision of a man and reducing the amount of maintenance to be paid by him to his wife and child, the Gauhati High Court has held that mere failure of the husband to furnish documents regarding his informal employment, which may or may not exist, does not necessarily discredit his evidence regarding his own income.
The High Court was considering a revision petition directed against the impugned order of the Chief Judicial Magistrate directing the petitioner husband to pay an amount of Rs. 12,000 per month towards maintenance of the respondent wife and Rs 8,000 per month for the maintenance of his daughter (till she attained majority).
The Single Bench of Justice Sanjeev Kumar Sharma held, “It is the considered view of this Court that mere failure of the 1st party/husband to furnish documents regarding his employment, which may or may not exist as he appears to be having informal employment, does not necessarily discredit his evidence, as to his own income, which he has stated to be between Rs 12,000/- to Rs 15,000/- in his statement of assets and liabilities. Non-examination of the owner of the pharmacy is also not a factor to be taken into account, inasmuch as the employee may not be in a position to drag the employer to the witness box for fear of losing his employment. Neither of the two are relevant grounds to disregard the evidence of the 2nd party/husband.”
Advocate B C Das represented the Petitioner, while Public Prosecutor represented the Respondent.
Factual Background
The parties got married as per Muslim Shariyat on March 22, 2013. After the marriage, the wife started her conjugal life with the husband and a girl child was born out of wedlock. It was alleged that after 2 years, the husband demanded Rs 10 lakh from the wife and on refusal to meet the said demand, the husband started mentally and physically torturing her. It was further alleged that the husband drove the wife out of her matrimonial house along with her minor child.
It was claimed that the husband is a businessman who deals with medicine, and from all sources, he earns about Rs 1,50,000 per month, whereas the wife has no income of her own. Upon perusal of the case record and finding sufficient ground for proceeding against the husband under Section 125 of the CrPC, the order granting maintenance was passed.
Reasoning
On a perusal of the statement of assets and liabilities submitted by the petitioner/husband before the Magistrate, the Bench noted that he had stated his income to be Rs 12,000 to Rs 15,000 per month. In the column meant for furnishing copies of bank statements of all accounts for the last three years, the petitioner/ husband had made the remark as NIL, inferring thereby that he did not have a bank account.
The Bench stated that mere failure to furnish documents regarding his employment would not discredit his evidence. “Non-examination of the owner of the pharmacy is also not a factor to be taken into account, inasmuch as the employee may not be in a position to drag the employer to the witness box for fear of losing his employment. Neither of the two are relevant grounds to disregard the evidence of the 2nd party/husband”, it added.
Considering that the husband had made a ‘NIL’ remark in his statement of assets and liabilities, indicating that he had no bank account, and in the absence of proof to the contrary, the Bench held that the Magistrate erred in holding that the second party had concealed any fact as regards his income. “Under the said circumstances, it was entirely arbitrary on the part of the learned Magistrate to shift the burden of proof upon the 2nd party to establish that his income per month did not amount to Rs 1,50,000/-or Rs. 75,000/- per month”, it added.
The Bench further noticed that the wife stated that her husband had a pharmacy business only in her cross-examination without submitting any documents in that regard. None of the other witnesses had stated in their examination-in-chief that the petitioner owned a pharmacy. Thus, the Bench concluded that it was clearly beyond the jurisdiction of the Magistrate to have regarded the income of the petitioner as Rs 75,000 per month, dehors any evidence in that regard. “Since there is nothing to dislodge the statement of the 2nd party/husband in his statement of assets and liabilities, that his income is Rs 12,000/- to Rs 15,000/- per month, the same not being an improbable figure, the same has to be taken as the basis for deciding the quantum of maintenance to be granted to the wife and the child”, it clarified.
The Bench also noticed that six people were involved in the dispute, including the petitioner/husband himself, the respondent/wife, their child, the mother of the petitioner, his second wife and their child. The Bench thus allowed the revision by holding that the respondent/wife and the child would be entitled to a total maintenance of Rs. 6,000 per month, out of which Rs. 2,000 would be on account of the child.
Cause Title: A v. The State of Assam (Case No.: Crl. Rev. P./307/2024)
Appearance
Petitioner: Advocate B C Das
Respondent: Public Prosecutor, Advocates N Z Choudhury, N A Mazarbhuiya, A R Bhuyan