Avinash Kumar aged about 30 years, S/o Sri Ramdeo Singh, R/o H. P. Bhawan v. 1. State of Jharkhand 2. Jhunni Devi, W/o Avinash Kumar, R/o Master Colony, Biharsharif
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 96 of 2022 Avinash Kumar aged about 30 years, S/o Sri Ramdeo Singh, R/o H. P. Bhawan, Indira Nagar, Road No. 4, Ram Bilash Chowk, Shekhpura, P.O. & P.S. Shekhpura, District Patna (Bihar) Petitioner … … Versus 1. State of Jharkhand 2. Jhunni Devi, W/o Avinash Kumar, R/o Master Colony, Biharsharif, P.O. & … … Opp. Parties P.S. Laheri, District Nalanda CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the State For the O.P. No. 2 12/16th February 2024 --- ---
Legal Reasoning
: Mr. Gaurav Abhishek, Advocate : Mr. Prabir Kr. Chatterjee, Advocate : Ms. Sugandha Khalkho, Advocate 1. 2. Learned counsel for the parties are present. This petition has been filed for the following reliefs: - “That the instant criminal revision application is preferred against the common order dated 07.12.2021 passed by the Court of Learned Principal Judge, Family Court, Lohardaga passed in Misc. Case No. 03 of 2014 whereby and whereunder petition filed by the petitioner for reduction of the maintenance amount was rejected and Misc. Case No. 06 of 2013 whereby and whereunder petitioner filed by the O.P. No. 2 for enhancement of the maintenance amount was allowed.” 3. Learned counsel for the petitioner while giving the background of the case has submitted that the relationship of husband and wife is not in dispute between the petitioner and opposite party No. 2. The opposite party No. 2 had filed maintenance case bearing OMC No. 65 of 2006 before the competent Court and was allowed a maintenance of Rs. 3,000/- per month. Thereafter, the opposite party No. 2 filed a petition under Section 127 of Cr.P.C. bearing Misc. Case No. 06 of 2013 for enhancement of maintenance from Rs. 3,000/- to Rs. 10,000/-. At the same time, the petitioner also filed a miscellaneous case bearing Misc. Case No. 03 of 2014 under Section 127 of Cr.P.C. for reduction of maintenance on account of his dismissal from service. 4. The learned counsel further submits that vide common order dated 19.09.2015, the aforesaid Misc. Case No. 06 of 2013 and Misc. Case No. 03 of 2014 was decided and the amount of maintenance was enhanced from Rs. 2 3,000/- to Rs. 5,000/-. Thereafter, the petitioner filed Criminal Revision No. 93 of 2016 against the order dated 19.09.2015 passed in Misc. Case No. 03 of 2014 and also preferred a Criminal Revision No. 1375 of 2015 against the judgment dated 19.09.2015 passed in Misc. Case No. 06 of 2013 and ultimately the common order dated 19.09.2015 passed in the aforesaid miscellaneous cases was set-aside by this Court vide judgment dated 23.07.2021 passed in Criminal Revision No. 93 of 2016 and Criminal Revision No. 1375 of 2015 and the fresh order has been passed pursuant to the order of remand. 5. While referring to the order dated 23.07.2021 passed in Criminal Revision No. 93 of 2016 and Criminal Revision No. 1375 of 2015, the learned counsel for the petitioner has submitted that this Court has taken into consideration that once the petitioner was out of employment then there was a necessity for the learned court below to consider this aspect of the matter as the same would have had a bearing on his income. 6. The learned counsel has referred to the fresh order which is impugned in the present case and submitted that as of now the amount of maintenance has been enhanced from Rs. 3,000/- to Rs. 4,000/-. 7. The learned counsel submits that at the time of filing the application under Section 127 of Cr.P.C., the petitioner stood convicted and therefore he was dismissed from service. However, vide judgment dated 23.07.2021 passed in Cr. Revision No. 92 of 2015, the order of conviction of the petitioner has been set-aside. The learned counsel has also submitted that the petitioner was earlier working in BSF and he is not aware as to whether the petitioner has been ultimately taken back in service or not. 8. Learned counsel appearing on behalf of the opposite party No. 2 has submitted that though no counter-affidavit has been filed in the present case, but as per her instruction, the petitioner has been taken back in service. 9. The learned counsel has further submitted that even if it is assumed that the petitioner is unemployed then also Rs. 4,000/- is a meagre amount and in view of the judgment passed by the Hon’ble Supreme Court in the case of Rajnesh vs. Neha & Anr. reported in (2021) 2 SCC 324, there is a clear direction that even an unemployed able bodied husband is required to maintain his wife. The learned counsel submits that considering the amount of maintenance fixed by the learned court below, the impugned order does not call 3 for any interference under revisional jurisdiction of this Court. The learned counsel has also submitted that the maintenance of Rs. 3,000/- was fixed vide Maintenance Case No. 65/2006 and much time has elapsed and at that point of time, the property of the petitioner was also taken into consideration. 10. After hearing the learned counsel for the parties and going through the impugned order, this Court finds that an amount of maintenance was fixed pursuant to Maintenance Case No. 65 of 2006 amounting to Rs. 3,000/- per month and the enhancement of the maintenance by the impugned order dated 07.12.2021 is only by Rs. 1,000/- and the enhanced amount of maintenance has been directed to be paid from the date of the impugned order. 11. It is not in dispute from the side of the petitioner that the order of conviction of the petitioner which was a reason for his dismissal from service has already been set-aside vide judgment dated 23.07.2021. 12. However, it is in dispute as to whether the petitioner has been taken back in service pursuant to his acquittal in the criminal case. This case is being decided considering the situation that the petitioner was unemployed. This court finds that the learned court below has passed the impugned order given the fact that the petitioner was unemployed and held that the petitioner cannot refuse to maintain his wife on the ground that he does not have sufficient means. 13. This Court finds that the learned court below while rejecting the petition for reduction of maintenance filed by the petitioner and while granting enhancement of maintenance from Rs. 3,000/- to Rs. 4,000/- has assigned following reasons: - “7. In this way, from the above referred evidences, oral and documentary, produced by both the sides it is apparent that the relationship between the parties as husband and wife is not in dispute and the O.P. Jhunni Devi was granted a maintenance amount of Rs.3,000/- through the judgment passed in O.M.C. 65/2006 dt. 15.09.2009. At that point of time petitioner Avinash Kumar was working in B.S.F. who was subsequently dismissed on 13.08.2013 due to his conviction in Lohardaga P.S. Case No.78/2006 filed by his wife Jhunni Devi. Later on through Misc case no.06/2013 Jhunni Devi brought a case for enhancement of the said maintenance amount due to price rise from Rs.3,000/- to Rs.10,000/-. On the other hand the petitioner Avinash Kumar brought a Misc. Case no.03/2014 for alteration of said maintenance of Rs.3,000/- passed in O.M.C. 65/2006 on the ground of his dismissal from the service with B.S.F. on 13.08.2013. The said dismissal order has been brought on the record as Ext.-a. Further Jhunni Devi has supported her assertion regarding the second marriage of Avinash Kumar through Ext-B which has been contradicted by said Avinash Kumar through his Ext-c and c/a. 4 However the said issue of second marriage of Avinash Kumar is pending before a criminal court. The O.P. in her evidence as O.P.W.1 in the instant amalgamated case has categorically stated in para 3 that the maintenance amount of Rs 3,000/- to be paid by the petitioner Avinash Kumar to her has not been paid since June 2014. Here I may take judicial notice of the fact that for the realization of the said dues maintenance amount, Jhunni Devi has filed Misc. Case no.09/2016 against her husband Avinash Kumar which is pending in this court. Further it is worth mention that the order of maintenance passed on 15.09.2009 in maintenance case 65/2006 remained intact as its challenge before the Hon’ble Court through Criminal Revision no.917/2009 was dismissed and in the para 6 of the order passed in Criminal Revision no 92/2016 with Criminal Revision No.1375/2015 dt 23rd July 2021 it has categorically been held that – “On dismissal of the criminal revision petition filed by the respondent it can be safely inferred that the amount of maintenance granted by the Court when the husband was in service and had agricultural income was just and reasonable.” 8. Now switching over to the real issue involved in this instant amalgamated Misc Petitions, the orders passed in B. Veragam v Manoranjan, (1963) Cut 416, Chandrapal v Harpyari, 1991 Cr. L.J 2847: 1991, (2) Crimes 808 (AII); see also Prabhulal v Parwatibai, 1952 CrLJ Raiberi Behera v. Mangaraj Behera, 1983 Cr.LJ 125 (Ori), Tarak Shaw v Minto Shaw, 1984 Cr LJ 206 (Cal) it is a well established fact that – “if a man is healthy and able bodied he must be held to possess the means to support his wife, children and parents and he cannot be relieved of his obligation on the ground that he is a mere boy and is unemployed. The words ‘sufficient means’ should not be confined to the actual pecuniary resources but should have reference to the earning capacity. “Means” of the husband does not mean the tangible property or sources of income of the husband but also his capacity. Potentiality and status. The maintenance has to be determined in the light of the standard of living of the person concerned, the earning of the husband his other financial commitments etc. insolvency of the husband is not conclusive to such determination. His capacity to work and and earn is material.” Thus, under the mandate of provisions of Sec. 125 Cr.P.C supported by several judgments of the Hon’ble Courts the petitioner Avinash Kumar can not refuse to maintain his wife on the ground that he has no sufficient means. The Hon’ble Courts in Basanta Kumari Vrs Sarat Kumar 1982 Cr.L.J 485 (Ori) and Raibari Behera Vrs. Mangaraj Behera, 1983 Cr.L.J. 125 (Ori) have held that – “the expression “means” under this section does not signify only visible means such as real property or definite employment. If a person is healthy and able bodied, he must be held to be possessed of means to support his wife, child and parents. The word “means” does not signify only means like estate, or definite employment, but also includes capacity to earn money.” The word means in section 125 Cr.P.C. includes earing capacity. Under such observations petitioner Avinash Kumar cannot be absolved from his liability to pay maintenance to his wife Jhunni Devi and the order of maintenance of Rs. 3,000/- per month through the judgment passed in OMC 65/2006 has been confirmed by the Hon’ble 5 Court in Criminal Revision No. 93/2016 with Criminal Revision No. 1375/15. Now as regards the enhancement and alteration of the said maintenance amount through above referred misc petitions of both the sides it is worth mention that the said maintenance amount of Rs. 3,000/- per month is of 15.09.2009 which is almost 12 years from now and the said amount is in the present time can easily be said to be a meagre one. The prayer for alteration of the same by the petitioner Avinash Kumar on the ground of his removal from service can not be said to have due weight in the light of his age of about 36 years and possession of proper health and having agricultural land as well.” 14. The learned court while refusing the prayer for reduction of maintenance and enhancing the maintenance by only Rs.1,000/- has, interalia, taken into consideration that while quantifying the maintenance in the earlier round in original maintenance case no. 65 of 2006 agricultural income of the petitioner was also taken into consideration and was of the view that the removal from service could not be given due weight in the light of the age of the petitioner being 36 years having proper health and having agricultural land and that the maintenance of Rs.3000/- was fixed 12 years ago which was a meagre amount in the present times. The learned court was of the view that the word ‘means’ in section 125 Cr.P.C. includes earning capacity. 15. This Court fully agrees with the view taken by the learned court in the impugned order which in turn is based on various judicial pronouncements. This Court finds that the view taken by the learned court is also supported by the views expressed by the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324 wherein it has been, interalia, it has been held that the objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage and there is no straitjacket formula for fixing the quantum of maintenance to be awarded. It has also been held that an able- bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family. Further the onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control and the obligation of the husband to provide maintenance stands on a higher pedestal than the wife. Paragraph Nos.77, 90.4 and 90.5 of the said judgment are quoted as under: “77. The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on 6 account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. 90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court. 90.5. This Court in Shamima Farooqui v. Shahid Khan cited the judgment in Chander Parkash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.” 16. In view of the aforesaid findings recorded by the learned court in the impugned order when seen in the light of the recent judgment passed by the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha & Anr. (supra), this Court finds that the learned court below has passed a well-reasoned order; plea of dismissal of the petitioner from BSF has been rightly rejected in the light of his possessing agricultural land which was/could be his other source of income / the capacity of the petitioner to earn as he was of an young age of 36 years and was healthy coupled with his obligation to maintain his wife ; plea of enhancement of maintenance has been partly allowed only to the extent of Rs.1000/- considering the maintenance fixed 12 years back @ Rs.3000/- per month which was said to be a meagre amount in present times. This Court finds no illegality or perversity in the impugned order calling for interference in revisional jurisdiction. Accordingly, this criminal revision application is dismissed. 17. Pending I.A., if any, is closed. Mukul (Anubha Rawat Choudhary, J.)