Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.64 of 2011 ====================================================== Vishwanath Prasad S/O Late Ganga Ram Chaurasia Resident Of Mohalla- Kabirganj, Hamraj Complex Near Girl High School, Gandhi Path Sasaram, P.S- Sasaram, Distt- Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. Shakuntala Devi W/O Vishwanath Prasad Resident Of Veena Pustak Bhawan, In Front Of Girl High School, Apana Bazar, Gandhi Path- Sasaram, P.S- Sasaram(T), Distt- Rohtas .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/S. Sudama Singh & Rajni Kant Singh, Advs. For the O.P.No.2 : Mr. Rai Ramesh Prasad, Advocate. For the Respondent : Mr. Dinesh Singh, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER 5 19-11-2013 Husband/petitioner has challenged the order dated 05.10.2010 passed by Principal Judge, Family Court, Rohtas at Sasaram in Maintenance Case No.45 of 2010 directing the husband/petitioner to pay Rs.4,000/- per month. The order was made effective from the month of pronouncement of judgment. 2. Heard learned counsel for the petitioner as well as learned counsel for the Opposite Party No.2 along with learned Additional P.P. 3. It has been submitted on behalf of the petitioner that the order impugned suggest non-application of mind in the
Legal Reasoning
background of the fact that in spite of having sufficient material 2 on the record that both the parties have common residence and further the wife/Opposite Party No.2 is being properly cared by the husband there was no occasion for the court to grant maintenance. There happens to be sufficient materials to support such plea in a manner as admitted by the witnesses that whenever the wife had fallen ill she was cared properly by getting herself examined by the competent doctors even at Varanasi at the cost of husband. 4. It has further been submitted that there was partition of the family property through Lok Adalat under Case No.150D of 2006 whereunder Schedule-A was given to under joint share of spouse wherein both are residing. When the husband is already taking proper care and maintaining his wife then in that event, there was no question for granting maintenance. 5. It has further been submitted that in due course of time, the wife Shakuntala Devi had fallen under track of her son Harsh Ranjan Kumar(P.W.2) at whose instigation she began to torture the husband/petitioner and on account thereof, he was forced to leave the house and is residing in the house of his another son Chitranjan since June, 2010 on rent. By such submission, it has been submitted that virtually wife is at wrong side stand and on account of her illegal activities, petitioner has 3 been forced to leave the place, therefore, wife is not entitled to claim maintenance. 6. By way of supplementary affidavit, it has been submitted that Schedule-A property has already been sold away by the wife/Opposite Party No.2 in favour of her son Harsh Ranjan Kumar for a consideration of Rs.4,21,000/- and having in possession of such huge amount, she now does not entitle to claim maintenance because of the fact that having availability of such huge amount denotified her status as having no sufficient means. So submitted that the order impugned did not justify its continuance. 7. At the other hand, the learned Lawyer for the Opposite Party No.2 has submitted that after retirement, her husband was allured by her another son Kranti Ranjan and his wife. Kranti Ranjan happens to be an Advocate and he, with an ulterior motive taking petitioner/husband in his collusion got so many documents and then thereafter instigated the petitioner and virtually on his instigation Opposite Party No.2/wife was left uncared under the state of destitution and on account thereof, he raised hue and cry attracting intervention of well-wishers and on whose command lastly the petitioner began to pay Rs.2,000/- per month as maintenance amount. When the aforesaid amount was 4 found insufficient to meet with necessary expenses including medical bills, the Opposite Party No.2 requested the petitioner to raise the quantum of maintenance in the month of June,2010 but the petitioner instead of raising the quantum of enhancement stopped making payment of maintenance amount which he was paying since before. Also submitted that because of the fact of old age of Opposite Party No.2 is unable to do the house holding works, has taken shelter at the house of her son Harsh Ranjan Kumar as has been left uncared by the petitioner/husband. 8. From the Lower Court Record, it is apparent that no document has been exhibited on behalf of respective parties. It is also evident from the evidence that petitioner/husband has admitted the status of the parties as well as has also admitted under paras-14 and 15 of the show cause that he began to pay Rs.2,000/- since October, 2005 in lieu of maintenance as well as availing medical facility. From para-15, it is evident that payment was made from October, 2005 to February, 2010. In para-16, he had also admitted that applicant/wife raised her grievance for enhancement of maintenance amount in the month of April, 2010 and refused to accept Rs.2,000/- and as he failed, instant case has been filed. He had also suggested that as the applicant is being looked after by him, hence there is no question of maintenance. 5 9. During course of trial, two witnesses were examined on behalf of applicant out of whom P.W.1 is applicant herself, namely, Shakuntala Devi and P.W.2 is Harsh Ranjan Kumar, her son while on behalf of Opposite Party/petitioner only he himself examined as Opposite Party Witness No.1. From the deposition of Shakuntala Devi, it is apparent that she had alleged separate stay since 2005, of petitioner/husband and thereafter stopped to maintain her. On the intervention of so many well-wishers lastly, he began to pay Rs.2,000/- per months. She is suffering from so many ailments and on account thereof, she raised her grievance for enhancement of maintenance amount whereupon her husband stopped to make payments. The other allegations are there which are not relevant for the present purpose. During cross- examination, she has admitted that she is residing in half portion of the building which was allotted to her as well as her husband during course of partition through Lok Adalat. For the present, her husband is not residing with her rather he is residing with her another son who is an Advocate near Veena Pustak. He had further stated that she had not filed any case till payment of Rs.2,000/- was being made by her husband. Her husband stopped to make payment since March, 2010. P.W.2 is one of the sons of applicant as well as Opposite Party who also stated the same 6 version. During examination, he had admitted partition as well as allotment of common house to his parents. Opposite Party Witness No.1 is petitioner himself. During examination-in-chief, he had disclosed the amount of pension of Rs.9775/-. He had got a grievance on account of putting objection by the wife during course of realization of amount on maturation of Kisan Vikas Patra. He had further admitted that he had paid Rs.2,000/- per month from October, 2005 to February, 2010 to avoid litigation. He had also admitted that he has paid interim maintenance amount also. He had further stated that he was residing with his wife in the house allotted to his share but from 15.06.2010, he left the house and is residing on rent. During cross-examination, he had admitted that he is residing in the house having allotted to the share of his son Chitranjan. He had denied the suggestion that he is residing with his son Kranti Ranjan. In para-6, he had admitted that he had got his wife medically treated at local level as well as at Varanasi. Then in para-7, there happens to be suggestion by way of denial. He had admitted that when he refused to part with half of the pension amount, then this case has been instituted. 10. After analyzing the evidence adduced on behalf of both the parties, it is apparent that there happens to be omission on the part of the Opposite Party that he was paying Rs.2,000/- since 7 2005 and that has been stopped when a grievance was made for its enhancement. It is also apparent from the evidence that on the alleged date of deposition of Opposite Party Witness No.1, he was getting Rs.9975/- per month as pension amount. From the order impugned, it is apparent that the learned Lower Court had taken the aforesaid theme and scrutinized its proper. 11. Now coming to the other aspect. As stated above the theme of sale deed executed by Opposite Party No.2 in favour of Harsh Ranjan Kumar is a subsequent event. The order impugned is to be adjudged under present revision petition on the basis of the material already available on record. During course of consideration of revision, no new plea could be entertained as has been held in the case of Jodhan Sahu v. Mt. Kulwanti Kuer as reported in AIR(35)1948 Patna 285 wherein at para-7, it has been held:- “…….That ground having failed, I do not think it is open to the husband to make out an altogether new case which was never pleaded and on which no evidence was given by the parties.” In Bibi Sakho and another v. Shahabuddin Mian as reported in 1972 Cr.L.J page-1481, it has been held under para-8:- “………As her case stood, there was not even a whisper on her behalf that she wanted separate residence from her husband because of the presence of his other wife. In that background it is hardly open to her to try to raise this issue for the first time at this revisional stage.” 8 12. Moreover, Section 127(1) of the Cr.P.C. takes care of the subsequent event which the petitioner, if so desire, may raise. 13. So far propriety of the order impugned is concerned that is found based upon the materials available on the record. Consequent thereupon instant petition is found lacking merit and is accordingly rejected. (Aditya Kumar Trivedi, J) Patna High Court, Dated 19th November, 2013, Brajesh Kumar/AFR