Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.155 of 2011 ====================================================== Santosh Kumar Gupta @ Bhola S/O Shri Gopal Prasad Gupta Resident Of Mohalla- Hussainabad, Police Station- Mojahidpur, District- Bhagalpur Versus .... .... Petitioner/s 1. The State Of Bihar 2. Smt. Radha Devi W/O Santosh Kumar Gupta @ Bhola And D/O Shri Bishnu Prasad Gupta Resident Of Mohalla- Urdubazar, Police Station- Kotwali, District- Bhagalpur .... .... Respondent/s ====================================================== with Criminal Revision No.171 of 2011 ====================================================== Radha Devi W/O Santosh Kumar Gupta @ Bhola S/O Gopal Prasad Gupta Resident Of Village- Hussainabad, P.S- Mozahidpur, District- Bhagalpur, At Present D/O Bishnu Prasad Gupta, Resident Of Village/Mohalla- Urdu Bazar, P.S- Tatarpur, District-Bhagalpur. Versus .... .... Petitioner/s 1. The State Of Bihar & 2. Santosh Kumar Gupta alias Bhola, son of Gopal Prasad Gupta, resident village-/Mohalla-Hussainabad, P.S. Mozahidpur, District-Bhagalpur
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : (In CR. REV. No.155 of 2011) For the Petitioner/s : Mr. Syed Md. Ashraf, Advocate. For the Respondent/s : Mr. Satyendra Prasad, APP. (In CR. REV. No.171 of 2011) For the Petitioner/s : Mr. Mritunjay Prasad Singh, Advocate. For the Respondent/s : Mr. Kalyan Shankar, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 5 19-11-2013 Heard learned counsel for the petitioners as well as learned Additional P.P. 2. Because of the fact Cr.Revision No.155 of 2011 as Patna High Court CR. REV. No.155 of 2011 (5) dt.19-11-2013 2 well as Cr.Revision No.171 of 2011 has been filed by the spouse against the same order dated 21.12.2010 passed by Principal Judge, Family Court, Bhagalpur in Miscellaneous Case No.28 of 2005. As such, both the petitions have been heard analogously and
Decision
are being disposed of by a common order. 3. Husband(petitioner of Cr.Revision No.155 of 2011) has prayed for reduction of the quantum amount in the background of the fact that though under compulsion he is paying the amount but from the order impugned, it is evident that the petitioner had failed to substantiate her plea with regard to means which could have justified grant of maintenance appertaining to Rs.3,000/- per month. Therefore, the quantum of maintenance so granted happens to be exorbitant one. 4. In support of such plea, it has also been submitted that during course of trial no document has been exhibited on behalf of wife in support of source of means. Contrary to it, it has been submitted that from the evidence of husband, it is evident that the shop belongs to his father wherein he assist and from the earning coming therefrom, any how maintenance of the family is being done. It has further been submitted that daughter Roma Kumari is along with him and apart from parents, his brothers, petitioner has to also maintain his daughter. For want of conclusive evidence as Patna High Court CR. REV. No.155 of 2011 (5) dt.19-11-2013 3 well as finding recorded by the learned Lower Court, the quantum of maintenance is fit to be reduced. 5. The wife who happens to be the petitioner of Cr.Revision No.171 of 2011 has challenged the order and prayed for enhancement of the maintenance amount whatever been granted by the learned Lower Court. To buttress his submission on this very score, learned counsel for the petitioner submitted that the finding of the learned Lower Court happens to be inconsistent with the material available on the record. The learned Lower had wrongly and illegally held that there happens to be complete absence of source of means as well as the source of earning which runs into lacks per month. Therefore, the maintenance amount so granted by the learned Trial Court is to be increased. 6. After going through the Lower Court Record, it is evident that Radha Devi, the wife had produced herself as P.W.8. In para-7 of her examination-in-chief had disclosed that the Opposite Party has got four shops, first one at Bhagwati Complex, the second one at Lohapatti, the third one at Machhalipatti and the fourth at his house. She has also disclosed that Opposite Party has got Khatal. She had also disclosed that so many godowns also belong to Opposite Party. She was cross-examined on that very score under para-4 and 5 of her cross-examination whereunder she Patna High Court CR. REV. No.155 of 2011 (5) dt.19-11-2013 4 had elaborately dealt with the issue. Santosh Kumar, the husband had himself examined as Opposite Party Witness No.7. After going through the same, it is apparent that save and except accepting a shop at Machhali Bazar, he had not spoken with regard to other establishment. When his evidence has minutely been gone through, it is apparent that he had not denied the aforesaid averment of the applicant, Radha Devi. 7. Having full acknowledgement of the aforesaid fact before his examination and then keeping mum is a circumstance that will certainly go against the husband. On account thereof, the finding of the learned Lower Court that no source of income has properly been disclosed is not found consistent with the evidence of the respective parties as discussed above. 8. That means to say the finding recorded by the learned Trial Court under para-27 of his judgment only to the extent of source of income is not at all fit to be affirmed. Side by side, the petition for enhancement in its present form as claimed by the wife is also not found entertainable because of the fact that mere stating that the shops are there will not found sufficient to suggest that petitioner has got particular amount of earning per month. She has disclosed the earning more than two lacks per month and for that, at least some sort of documentary evidence would have been. Patna High Court CR. REV. No.155 of 2011 (5) dt.19-11-2013 5 Petitioner, at least have taken recourse by obtaining the statement from Sales Tax Department, Income Tax Department, Weights and Measurement Department, Shop and Establishment Department etc. As such, I do not see both the petitions maintainable against the judgment impugned. Consequent thereupon, both the petitions are rejected. (Aditya Kumar Trivedi, J) B.Kr./-