The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 128 of 2019 V. Sarita, aged about 40 years, wife of V. Neelankar and daughter of Ch. Rajagopal Rao, presently residing at C-57, Lovely Nest, Vijaynagar, P.O. Agrico, P.S. Sidhgora, Town Jamshedpur, District East Singhbhum. Petitioner … … Versus 1. The State of Jharkhand. 2. V. Neelankar son of Late V. Errayya@ Varadhi Narayana, resident of L/23, Unit No.-X, New Settlement, P.O. & P.S. Kharagpur, West Bengal. Office Address- Amma /R. Yard / KGP, Central Stores, South Eastern Railways, PO.PS- Kharagpur, West Bengal. … … Opposite Parties --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. Vikash Kumar, Advocate
Legal Reasoning
For the Petitioner For the Opp. Party No.2 : Mr. Rohit Ranjan Sinha, Advocate : Mr. Akchansh Kishore, Advocate : Mr. Piyush, Advocate --- 13/25.04.2024 1. 2. Heard the learned counsel for the parties. This criminal revision petition has been filed against the order dated 25.09.2018 passed by learned Additional Principal Judge, Family Court, East Singhbhum in Original Maintenance Case No. 130 of 2016 whereby the learned Court has rejected the petition filed by the petitioner seeking maintenance. Original Maintenance Case No. 130 of 2016 was filed by the petitioner on her behalf and on behalf of her two children aged 14 years and 6 ½ years against the opposite party no. 2 seeking maintenance of an amount of Rs. 30,000/- for herself and children with litigation cost. 3. It was the case of the petitioner that the marriage between the petitioner and opposite party no. 2 was solemnized on 23.02.2002 and out of the wedlock, two children were born, but she was mentally and physically tortured on account of non-fulfillment of dowry demand and ultimately, she left her matrimonial home with children and was staying with her parents at Jamshedpur. 4. After bringing the children at Jamshedpur, the children have been admitted in schools and they are studying. As per the case of the petitioner, the opposite party no. 2 is a permanent employee of South Eastern Railway in Central Stores Department, Kharagpur, West Bengal and his monthly salary was Rs. 30,000/-. She also claimed that huge amount was spent for the purposes of readmission of children in the school and she claimed litigation expenses also. She claimed maintenance @ Rs. 20,000/- per month (Rs. 5,000/- each for applicant nos. 2 and 3 and Rs. 10,000/- for herself) and further Rs. 50,000/- lumpsum for readmission of children and purchase of books etc. and Rs. 25,000/- as litigation expenses. Before the learned Court, the petitioner examined herself as PW -1 and her father was examined as PW -2. 5. Before the learned trial Court, two witnesses were examined on behalf of the opposite party no. 2; himself and his colleague. The opposite party no. 2 also exhibited the petition filed under section 9 of Hindu Marriage Act seeking restitution of conjugal rights, which was numbered as Mat. Suit No. 486 of 2017. 6. The learned counsel for the petitioner, while challenging the impugned order refusing maintenance, has submitted that the learned Court has wrongly recorded that there was no sufficient reason for the petitioner to live separately. He has also submitted that the learned Court has been swayed away by the fact that even during mediation the petitioner did not agree to live with her husband. He has also submitted that the learned Court has completely ignored the fact that a criminal case was lodged by the petitioner against the opposite party no. 2 in connection with torture. He has submitted that the order taking cognizance dated 24.01.2017 in the criminal case being C/1 Case No. 1433 of 2016 has been brought on record before this Court. 7. The learned counsel further submitted that so far as the petition filed under section 9 of the Hindu Marriage Act is concerned, the petitioner was cross-examined and she had submitted that she had not received any notice regarding the same. 2 8. The learned counsel appearing on behalf of the petitioner has thereafter submitted that under any circumstances, the maintenance with regard to the children could not have been declined by the learned Court. He has submitted that there is no discussion regarding the maintenance of the children. 9. The learned counsel appearing on behalf of the opposite party
Decision
no. 2, on the other hand, has submitted that the impugned order is a well-reasoned order and every aspect of the matter has been taken into consideration. So far as the petition filed under section 9 of Hindu Marriage Act is concerned, the same has been decreed against the petitioner, though the same was an ex-parte decree. 10. The learned counsel appearing for the opposite party no. 2 has further submitted that the order of cognizance which has been brought on record, may not be considered as the same was never exhibited before the learned Court. 11. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that that the marriage between the parties is not in dispute. It is also not in dispute that two children have been born out of wedlock. Both the children were minor at the relevant point of time and studying in Jamshedpur. 12. The evidence of the petitioner before the learned Court reveals that she had duly disclosed that she had filed a criminal case against the opposite party no. 2 and the opposite party no. 2, who deposed as a witness before the learned Court, had also admitted in paragraph 13 of his evidence as recorded in the impugned order itself that the petitioner had filed a case against him under section 498A of Indian Penal Code. The opposite party no. 2 also stated that he got anticipatory bail in the said case. 13. This Court finds that although the specific case number in connection with the case under section 498A of Indian Penal Code has not been mentioned, but the fact stood admitted between the parties that a criminal case under section 498A of Indian Penal Code was filed which was pending and the opposite party no. 2 had obtained 3 anticipatory bail in the said case. Even during the course of hearing, it is not in dispute that a criminal case under section 498A of Indian Penal Code was lodged. 14. This Court also finds that the learned Court, while recording a finding that the petitioner had no reasonable excuse to live separately, has not at all considered the fact that a criminal case under section 498A of Indian Penal Code was filed by the petitioner and was pending. This Court also finds that the learned Court, while recording the aforesaid finding, has taken into consideration the communication between both the parties at the time of mediation and has recorded that the opposite party no. 2 was time and again asking the petitioner to go with him during the mediation proceedings, but the petitioner had refused. 15. This Court is of the considered view that on the one hand the filing of criminal case by the petitioner under section 498A of IPC against the opposite party no. 2 has not been taken into consideration while recording the finding that the petitioner had no reasonable excuse to live separately and on the other hand, the communication between the parties and certain observations relating to mediation has been taken into consideration and has been made the basis while recording the findings that the petitioner had no reasonable excuse to live separately. The findings based on reference to discussions during mediation is perverse and cannot be sustained in the eyes of law. 16. This Court also finds that the learned Court has completely ignored the fact that maintenance of children was also involved in the case and has not given any finding with regard to maintenance of children, much less, the quantum of maintenance to be awarded to them. 17. In view of the aforesaid facts and circumstances, this Court is of the considered view that the impugned order is perverse and in order to secure the ends of justice the impugned order calls for interference under revisional jurisdiction of this Court and the matter is fit to be remanded for fresh consideration. 4 18. Accordingly, the impugned order dated 25.09.2018 passed by learned Additional Principal Judge, Family Court, East Singhbhum in Original Maintenance Case No. 130 of 2016 is set aside and the matter is remitted back to the learned Court for fresh consideration. The evidences on record will be taken into consideration while passing fresh order. Further, the quantum of maintenance is to be fixed on the basis of affidavits to be filed by both the parties in terms of the judgment passed by the Hon’ble Supreme Court in the case of “Rajnesh v. Neha” reported in (2021) 2 SCC 324. The affidavit in terms of the aforesaid judgement passed by the Hon’ble Supreme Court be filed by the parties before the concerned court by appearing on 18.06.2024. The learned Court shall pass appropriate fresh order in accordance with law within a period of two months from 18.06.2024. 19. This criminal revision petition is accordingly disposed of. 20. Pending interlocutory application, if any, is dismissed as not pressed. 21. Let a copy of this order be communicated to the court concerned through ‘FAX’. Pankaj (Anubha Rawat Choudhary, J.) 5