Gauhati High Court
Barnali Talukdar vs Deep Jyoti Kalita on 27 July, 2026
Page No.# 1/12
GAHC010079662023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./165/2023
BARNALI TALUKDAR
D/O BIBEKANANDA TALUKDAR, HOUSE NO. 37, NABARUN PATH, JATIYA,
GUWAHATI-781006, KAMRUP (M), ASSAM
VERSUS
DEEP JYOTI KALITA
S/O LATE CHANDI CHARAN KALITA, FLAT NO. 1B, ABODE ENCLAVE,
GITNAGAR, P.O.-BAMUNIMAIDAM, PIN-781021, KAMRUP (M), ASSAM
Advocate for the Petitioner : MR. K BHATTACHARJEE, MS. A BARMAN
Advocate for the Respondent : MR. P K MAZUMDAR, MR A CHAKRABORTY,MS. M
BHUYAN,MS. GARGI KASHYAP,MR. A SARMAH,MS. B CHAKRAVARTY
BEFORE
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
JUDGMENT
Date : 27.07.2026
[1] Heard Mr. K. Bhattacharjee, learned counsel for the
petitioner/ wife and Mr. A. Chakraborty, learned counsel for the
respondent/ husband.
[2] The instant criminal revision petition has been preferred
under Section 401 Cr.P.C. read with Section 397 Cr.P.C., 1973, read
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with Section 19 of the Family Court Act, 1984 challenging the
impugned judgment and order dated 16.02.2023, passed by the
learned Principal Judge, Family Court No. 1, Kamrup (Metro),
Guwahati in F.C. (Crl.) Case No. 346 of 2018.
[3] The facts leading to the present revision petition briefly are
that the respondent/ husband had filed a divorce petition under
Section 13(1)(i-a) of the Hindu Marriage Act, 1955 as well as under
Section 27 of the Special Marriage Act, 1972 seeking divorce from the
petitioner/ wife vide F.C. (Civil) 244/2018, which is pending before the
learned Principal Judge, Family Court, Kamrup (Metro), Guwahati.
After filing the divorce petition, the petitioner/ wife filed a
maintenance case bearing F.C. (Crl.) Case No. 346 of 2018 under
Section 125 Cr. P.C., 1973, claiming maintenance amount of Rs.
30,000/-(Rupees thirty thousand) only for their two children who are
aged about 14 years and 11 years respectively, who are staying with
the petitioner/ wife. The learned Principal Judge, Family Court No. 1
Kamrup (M), Guwahati and passed an order dated 16.02.2023
directing the respondent/ husband to pay an amount of Rs. 25,000/-
(Rupees twenty five thousand) only per month from the date of
passing of the order.
[4] Although the impugned judgment and order has been
Page No.# 3/12challenged as a whole and it is also stated in the revision petition that
the petitioner/ wife ought to have been awarded Rs. 30,000/ –
(Rupees thirty thousand only) as maintence per month as sought for
by her, in course of hearing the said aspect of the quantum of
maintenance has not been pressed and even the calculation of the
arrear amount due to the petitioner/ wife has been made on the basis
of Rs. 25,000/- (Rupees twenty five thousand only) per month as
maintenance so far. Therefore, the short point for consideration in the
instant revision petition is as to whether the learned Magistrate erred
in directing that the maintenance to be paid from the date of the
order and not from the date of the application.
[5] The relevant provision for the purpose of the present case is
sub-section (2) of Section of Section 125 Cr.P.C, which reads as
follows:
(2) Any such allowance for the maintenance or interim maintenance
and expenses for proceeding shall be payable from the date of the
order, or, if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as
the case may be.
[6] In course of their arguments, the learned counsel for both the
parties have relied upon paragraph 17 of the decision of the Hon’ble
Apex Court in the case of Shaahjan Ali Vs. State of Uttar Pradesh
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& Anr. (2025) INSC 258 which is quoted herein below:-
“17. This brings us to the next question, i.e., from which date will
the maintenance be payable the date of the application or the date
of the Order? The appellant has contested the direction of the
Family Court wherein it has made the maintenance payable from the
date of the order instead of the date of application. Of course,
Section 125(2) of the Code empowers the Court to award
maintenance from the date of the order but the same has to be
justified in the background of the attendant facts and circumstances
and should not cause unnecessary hardship to the applicant. In our
view, Section 125 of the Code is a beneficial piece of legislation
which has been enacted to protect the wife and children from
destitution and vagrancy and, in the usual course, it would not be
appropriate to disadvantage the applicant for the delay in the
disposal of the application by the judicial system. It would be
beneficial to reproduce the relevant discussion in Rajnesh v Neha,
(2021) 2 SCC 324, which is extracted hereunder:
‘109. The judgments hereinabove reveal the divergent views
of different High Courts on the date from which maintenance must
be awarded. Even though a judicial discretion is conferred
upon the court to grant maintenance either from the date of
application or from the date of the order in Section 125(2)
CrPC, it would be appropriate to grant maintenance from
the date of application in all cases, including Section 125
CrPC. In the practical working of the provisions relating to
maintenance, we find that there is significant delay in
Page No.# 5/12disposal of the applications for interim maintenance for
years on end. It would therefore be in the interests of
justice and fair play that maintenance is awarded from the
date of the application.
110. In Shail Kumari Devi v. Krishan Bhagwan Pathak
[Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC 632:
(2008) 3 SCC (Cri) 839), this Court held that the entitlement of
maintenance should not be left to the uncertain date of
disposal of the case. The enormous delay in disposal of
proceedings justifies the award of maintenance from the date of
application. In Bhuwan Mohan Singh v. Meena [Bhuwan Mohan
Singh v. Meena, (2015) 6 SCC 353: (2015) 3 SCC (Civ) 321: (2015)
4 SCC (Cri) 200], this Court held that repetitive adjournments
sought by the husband in that case resulted in delay of 9 years in
the adjudication of the case. The delay in adjudication was not
only against human rights, but also against the basic
embodiment of dignity of an individual. The delay in the conduct
of the proceedings would require grant of maintenance to date back
to the date of application.
111. The rationale of granting maintenance from the date of
application finds its roots in the object of enacting
maintenance legislations, so as to enable the wife to
overcome the financial crunch which occurs on separation
from the husband. Financial constraints of a dependent
spouse hamper their capacity to be effectively represented
before the court. In order to prevent a dependant from
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being reduced to destitution, it is necessary that
maintenance is awarded from the date on which the
application for maintenance is filed before the court
concerned.
112. In Badshah v. Urmila Badshah Godse [Badshah v. Urmila
Badshah Godse, (2014) 1 SCC 188: (2014) 1 SCC (Civ) 51], the
Supreme Court was considering the interpretation of
Section 125 CrPC. The Court held: (SCC p. 196, para 13)
“13.3…. purposive interpretation needs to be given to the
provisions of Section 125 CrPC. While dealing with the
application of a destitute wife or hapless children or parents
under this provision, the Court is dealing with the
marginalised sections of the society. The purpose is to
achieve “social justice” which is the constitutional vision,
enshrined in the Preamble of the Constitution of India. The
Preamble to the Constitution of India clearly signals that we have
chosen the democratic path under the rule of law to achieve the
goal of securing for all its citizens, justice, liberty, equality and
fraternity. It specifically highlights achieving their social justice.
Therefore, it becomes the bounden duty of the courts to
advance the cause of social justice. While giving
interpretation to a particular provision, the court is
supposed to bridge the gap between the law and society.
(emphasis supplied)
113. It has therefore become necessary to issue directions to bring about
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uniformity and consistency in the orders passed by all courts, by directing
that maintenance be awarded from the date on which the
application was made before the court concerned. The right to
claim maintenance must date back to the date of filing the
application, since the period during which the maintenance
proceedings remained pending is not within the control of the
applicant.'”
(emphasis supplied by bolding; underlining reflects emphasis
supplied in original)[7] Mr. K. Bhattacharjee, learned counsel for the petitioner
submits that in view of the clear directions of the Hon’ble Supreme
Court in Rajnesh (supra) it is imperative that the maintenance be
paid from the date of the application. Although, it has been observed
in Sahajan (supra) that the Family Court may direct such payment
from the date of the order, the same has to be justified in the
background of the attended facts and circumstance and should not
cause unnecessary hardship to the applicant. This means, submits
learned counsel that the Family Court has to show specific reasons
justifying his decision to award maintenance from the date of the
order, which is an exception and not from the date of the application,
but no such reasons have been assigned by the Family Court in the
impugned order.
[8] Mr. A. Chakraborty, learned counsel for the respondent
Page No.# 8/12submits that the reasons which weighed in the mind of the court are
available in paragaraph 11 of the impugned judgment. The learned
Family Court has taken into consideration all the relevant factors after
which it has been decided to grant maintenance from the date of the
order, submits the learned counsel. It is further submitted that this is
not a case where no maintenance at all was being paid to the
petitioner/wife. Rather, pursuant to interim order for maintenance @
of Rs.15,000/- per month, the same was being paid to the petitioner/
wife during the course of the proceeding and that is the reason why
the final order for maintenance was made effective from the date of
the impugned order. Paragraph 11 of the impugned judgment and
order which is relevant to the present case, which is reproduced
herein below:
“11. Having considered the material on record, it appears that the 1 st
party is a practicing lawyer and is able to maintain herself withoutthere being any support from her husband 2 nd party. The 1st party in
her petition in Para No.6 had even stated that she is competent to
maintain her family because she is working in practicing lawyer in the
Gauhati High Court, but filed the petition seeking maintenance fromthe 2nd party since he is a father and it is his legal duty to provide
maintenance to the children. The 2nd party, however, admitted that
he is having legal duty to provide maintenance to his children and
accordingly provided fees for ‘Crèche’ as well as school fees without
there being any order passed by this Court. He is an employee of Dr.
Bhubaneswar Borooah Cancer Institute, Guwahati and is getting a
Page No.# 9/12sum of around Rs.1,30,000/ and out of which he is getting a sum of
Rs. 1,00,000/ as take home pay per month. He is having some
financial liabilities which can be inferred from the document so
submitted by him. He is taking a personal loan, invest in Sukanya
Samridhi Yojana. He is also planning to take home loan and as suchconsidering the income liability of the 2nd party together with
considering the facts that some more cases are pending in between
the parties, I am of the view that a sum of Rs. 12,500/ to each of the
children per month would be appropriate and reasonable
maintenance.
12. In result, the petition filed by the 1 st party is allowed on contest
with a direction to the 2nd party to pay a sum of Rs. 12,500/ to each
of the two children totaling Rs.25,000/(Rupees Twenty Five Thousandonly) to the 1st party per month as maintenance allowance from the
date of this order.”
[9] In Rajnesh (Supra), it appears that what impelled the
Hon’ble Supreme Court to direct grant of maintenance from the date
of the application in all cases including under Section 125 Cr.P.C. is
that it was found that in the practical working of the provisions
relating to the maintenance, there is significant delay in disposal of
the application of interim maintenance for years on end. It was also
observed that the rationale of granting maintenance from the date of
the application was to enable the wife to overcome the financial
crunch which occurs from the separation from the husband.
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[10] In the instant case however, as already noted, the present
respondent wife was in receipt of Rs. 15,000/- as interim maintenance
till disposal or passing of the impugned judgment and order and
therefore, the petitioner/ wife would not have difficulty in overcoming
the financial crunch which occurs on separation of the husband and
more so because of the fact that petitioner/ wife is a practicing lawyer.
Who has herself stated in her pleadings that she is quite capable of
maintaining herself. It was only for the children, who are school going
kids that the maintenance was sought. Furthermore, the other
rationale for grant of maintenance from the date of application as
mentioned in Rajnesh (supra) is the delay in disposal of interim
maintenance application, which rationale is not present in the instant
case.
[11] The petitioner/ wife had filed the application for
maintenance under Section 125 Cr.P.C. before the Family Court on
21.06.2018 which came to be disposed of on 16.02.2023 by the
impugned judgment and order i.e. after about four and half years.
During this period, however, by order dated 07.01.2019, the present
petitioner/ wife was granted interim maintenance of Rs. 15,000/-
(Rupees fifteen thousand) only per month for the minor children with
effect from the date of the said order. Admittedly the respondent/
husband has been providing maintenance to his children in the form
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of fees of crèche as well as school fees without there being any order
passed by the court as reflected in the impugned judgment.
[12] All the aforesaid facts find reflection in the impugned
judgment and would naturally have been borne in mind by the
learned court below while directing the maintenance to the paid from
the date of the order and only because the justification thereof has
not been separately spelled out does not lead to a presumption that
the said order was made without cogent reason or was not justified in
the facts and circumstance of the case. There can be no presumption
that a judicial order has been passed mechanically and without valid
reasons and justification. In fact, it is the other way around.
[13] While it is true that there is a difference of Rs. 10,000/- in
the maintenance amount finally awarded in comparison to the amount
of interim maintenance, taking into account the depreciation in the
value of money on account of inflation over a period of four and half
years, the difference in real terms cannot be said to be significant.
[14] Therefore, on a overall consideration of the facts and
circumstances, I am of the view that there is no illegally,
incorrectness, impropriety that would vitiate the impugned judgment
and order.
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[15] In view of the above, revision fails and is accordingly
dismissed. It is however, made clear that all the arrears of interim
maintenance @ of Rs. 15,000/- per month and final maintenance @
of Rs. 25,000/- per month shall be cleared by the respondent/
husband.
[16] Consequently the petition stands dismissed.
JUDGE
Comparing Assistant
