…. Abhishek Kumar @ Sonu, aged about 39 years, son of Sri Ashok Kumar v. 1. Pritee Kapoor, wife of Abhishek Kumar @ Sonu, daughter of Sri Basant Narayan
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 208 of 2022 …. Abhishek Kumar @ Sonu, aged about 39 years, son of Sri Ashok Kumar Singh, resident of Village Ichak, Khatri Mohalla, PO & PS- Ichak, District- Hazaribagh …… Petitioner Versus 1. Pritee Kapoor, wife of Abhishek Kumar @ Sonu, daughter of Sri Basant Narayan Mahtha 2. Prins Kumar son of Sri Abhishek Kumar @ Sonu, (living under guardianship of opposite party no. 1-mother) Both are residents of Village Ichak, Khatri Mohalla, PO & PS- Ichak, District- Hazaribagh Presently residing at Village- Gagi, Kewat Tola, PO & PS- Petarbar, District- Bokaro, Jharkhand 3. The State of Jharkhand ----- …… Opp. Parties HON'BLE MR. JUSTICE SANJAY PRASAD PRESENT ----- For the Petitioner For the State For the O. P. No. 2 : Md. Zaid Ahmad, Advocate : Mrs. Anuradha Sahay, A.P.P. :Mr. Atanu Banerjee, Advocate. …… JUDGMENT …. 08/25.01.2024 The Criminal Revision No. 208 of 2022 has been filed on behalf of the petitioner challenging the ‘Order’ dated 21.01.2022 passed by the learned Principal Judge, Family Court, Bokaro in the Original Maintenance Case No. 210 of 2018 by which the learned Principal Judge, Family Court, Bokaro has allowed the petition filed under Section 125 of the Cr. P. C. of the opposite party nos. 1 and 2 for maintenance and has directed the petitioner to pay maintenance amount of Rs. 6,000/- jointly toward their maintenance allowance, from 14.09.2018 i.e. from the date of filing of the case. It has also been directed that the son i.e. the opposite party no. 2 will be entitled to get this maintenance amount till attaining the age of his majority. 2 2. The case of the Wife-O.P. No. 1, is that marriage of the opposite party no. 1 with the husband-petitioner was solemnized on 11.06.2015 as per Hindu rites and customs at Hazaribagh and out of their marital wedlock, they have been blessed with a son (i.e. O. P. No. 2). After few months of their marriage, the petitioner and his family members started demanding dowry of Rs.5,00,000/- and due to non-fulfilment of the same, she was subjected to cruelty and torture by various means. On 06.04.2017, the petitioner refused to keep her without fulfillment of said demand of dowry and on 06.04.2017, the petitioner had assaulted her brutally with a view to take her life without any reasonable cause and lastly she was brought to her parents home and since then she along with her minor son is living at her parents home. Thereafter, she had filed C.P.Case No. 337/2018 u/S. 498A, 323, 379, 354, 420, 471, 504/34 IPC and 3/4 Dowry Prohibition Act against the petitioner and his family members. She has no means for their livelihood and anyhow she is maintaining themselves by doing manual work and is facing great hardships. It is further stated that the petitioner is a businessman and earns Rs.50,000/- per month, Rs.20,000/- per month from agriculture, Rs.10,000/- per month from dairy farm, Rs.10,000/- per month from Generator business and Rs. 50,000/- per month from house rent and hence the petitioner may be directed to pay Rs.20,000/- per month for their maintenance. 3. The case of the petitioner, as per his show cause, is that his wife has no respect for him. On being instigated by her parents with a view to extort money, she has filed this case on baseless, vague and concocted grounds. It is stated that his father-in-law wants to keep his daughter (O. P No.1) with him at his house and he also wants to keep him as Gharjamai and when he did not 3 agree, then she has filed false case against them. It is further stated that behaviour of his wife with the family members of the petitioner is not cordial and respectful. She with a view to go to her parents home, her broken household articles, T.V. Fridge etc. He always tried to adjust with her but in vain. He has further stated that in the year 2018 in a fit of rage, his wife started breaking household articles. After that, finding no option, he called her father and relatives, who came and sent her giving her all gifts and ornaments on 27.05.2018, for which a list was prepared and was signed by the relatives of the Petitioner. Thereafter, several times he went to his sasural to bring her back but they refused on one pretext or the other. Later on his wife-O.P. No.1 has filed C.P.Case No. 337/2018 against them on false and concocted grounds. It is further stated that he has no such source of income as claimed by the O. P. No. 1 and he is unable to pay cost of maintenance to the O. P. Nos. 1 and 2 separately. However he all along wanted to keep his wife and son with him with full honour and dignity. Therefore, the instant maintenance case is liable to be dismissed. 4. Heard learned counsel for the petitioner and learned
Legal Reasoning
counsel for the State and learned counsel for opposite party no. 1. 5. It is submitted by the learned counsel for the petitioner that impugned order dated 21.01.2022 passed by the Learned Court below in Original Maintenance Case No. 210 of 2018 is illegal, arbitrary and not sustainable in the eyes of law. It is submitted that the impugned order is bad in law as well as on facts and as such the same is liable to be set aside. It is submitted that from the statements of PWs as well as OPWs, it is apparent that the opposite party no.1 had deserted her matrimonial home without there being any valid reason and further she is not even willing to join her matrimonial home without there being any cogent reason. It is 4 submitted that the P.W.-5, who happens to be the opposite party no.1 (i.e. wife), has clearly stated during her cross-examination at para-28 that she is not willing to go to her matrimonial home even if her in-laws are willing to take her back. It is submitted that the P.W.-5 has clearly denied from having any knowledge about Original Suit No. 114 of 2019, which has been filed for restitution of conjugal rights, but on the other hand from her own statement, it is apparent that she has appeared in Original Suit No. 114 of 2019 before Family Court, Hazaribagh. It is submitted that this petitioner has also filed a suit for restitution of conjugal rights which has been registered as Original Suit No. 114 of 2019 in which opposite party no.1 is not showing proper interest. It is submitted that the father of opposite party no.1 is willing to keep this petitioner as Ghar Jamai, for which this petitioner is not ready. It is submitted that this petitioner when examined himself as OPW-4 has categorically given the dates on which he went to his in-laws house to bring his wife back. It is submitted that it is apparent from the statements of witnesses that family members of opposite party no.1 came to her in-laws house to bring her back and they took back all her belongings and other articles after preparing a list. It is submitted that it is the opposite party no.1 who has deserted her matrimonial home without there being any valid reason. It is submitted that there is a photo copy shop from which an earning of Rs. 8000-10000/- per month comes and entire family members depend upon the said income which includes parents, grandmother and brother of this petitioner. It is submitted that the opposite party has not filed any document to substantiate her allegation about income and work of this petitioner. It is submitted that the quantum of maintenance awarded to opposite parties is an exorbitant and the petitioner is not at all in condition 5 to pay the said maintenance amount and as such, the impugned order passed by the learned Court below is not sustainable in the eye of law and may be set aside in the interest of justice and this Criminal Revision Application may be allowed. 6. On the other hand, learned counsel for the State has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that the petitioner has neglected his wife and son thoroughly and also the opposite party no. 1 has been compelled to file maintenance case against the petitioner and as such, the criminal revision application may be dismissed. 7. On the other hand, learned counsel for the opposite party no. 2, after adopting the submission of the learned A.P.P., has further submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that the opposite party no. 1 is the legally married wife of this petitioner and opposite party no. 2 is own son of the petitioner, but the petitioner is refusing to maintain them. It is submitted that the learned Court below has allowed the meagre amount of Rs. 6,000/- lump sum to both i.e. O. P. Nos. 1 and 2, which is from the date of filing of the case and her son i.e. Opposite party no. 2 will be entitled to maintenance till he attains the age of majority. Since the opposite party no. 1 has fully supported her case and has stated that the petitioner has fully neglected her and her son and has not paid any maintenance amount. It is submitted that P. W. 1, Ravi Kapoor. P. W. -2, Prem Kumar Mahtha and P. W.-3, Basant Narayan Mahtha and P.W.-4, Hriday Kumar have fully supported the case of the O.P. No.-1 and O.P. No.-2. It is submitted that the petitioner has filed Matrimonial Suit No. 114 of 2019 in defence of the maintenance so that he may 6 not have to pay maintenance amount. It is submitted that the petitioner has five Bighas of agricultural land and one shop and one Commercial Building. It is submitted that the petitioner has not disclosed his income on an affidavit in light of the judgment rendered by the Hon’ble Supreme Court in the case of Rajnish Vs. Neha reported in 2021 (2) SCC 324 and as such, this Criminal Revision Application may be dismissed. 8. Perused the Records of this case and the impugned ‘Order’ passed by the learned Court below and considered the submissions of learned counsel for both the sides. 9. It transpires that opposite party no. 1 namely Pritee Kapoor is the wife of the petitioner whereas the opposite party no. 2 namely Prins Kumar is the own son of the petitioner. 10. It transpires that the opposite party no. 1, Pritee Kapoor has filed Original Maintenance Case No. 210 of 2018 under Section 125 of the Cr.P.C. for maintenance of Rs. 20,000/- per month for maintaining her and her son. 11. It appears from the impugned order that the wife-O. P. No. 1 has got examined five (5) witnesses in support of her case, who are as follows:- (i) P.W.-1, Ravi Kapoor (Brother), (ii) P.W.-2, Prem Kumar Mehtha, (iii) P.W.-3, Basant Narayan Mahtha (Father), (iv) P.W.-4, Hriday Kumar and (v) P.W.-5, Pritee Kapoor (Opposite Party No. 1-wife) 12. However, no documentary evidence has been marked on behalf of the opposite party no. 1-wife as Exhibits in this case. 13. On the other hand, the husband-petitioner has got examined (4) witnesses in support of his case, who are as follows:- (i) O.P.W.-1, Santosh Kumar Singh, 7 (ii) O.P.W.-2, Nikhil Kumar Singh, (iii) O.P.W.-3, Ashish Kumar and (iv) O.P.W.-4, Abhishek Kumar (petitioner-husband) 14. However, husband-petitioner has not proved any documents in support of his case. 15. Thereafter, learned Principal Judge, Family Court, Bokaro had passed the order for grant of maintenance to the wife i.e. the O. P. No. 1, Pritee Kapoor and her son i.e. the O. P. No. 2, Prins Kumar by directing the petitioner to pay the composite amount of Rs. 6,000/- per month jointly towards their maintenance allowance with effect from 14.09.2018 (i.e. from the date of filing of the case). 16. The petitioner has filed photocopy of the certified copy of the evidence of both the sides in this Criminal Revision Application and as such, the case is being disposed of without calling the Lower Court Records. 17. So far as the oral evidence is concerned, the P.W.-5 is Pritee Kapoor, who is the wife-opposite party no. 1 and has filed her evidence on her affidavit stating therein that she is legally wedded wife of the petitioner- Abhishek Kumar @ Sonu whereas the opposite party no. 2, Prins Kumar is the son of the petitioner, who is aged around 2 and 1/2 years. She was married with the petitioner on 11.06.2015 as per Hindu Customs in Pradhan Cafeteria Hotel, situated near the Budwa Mahadeo Mandir, Hazaribagh and at the time of marriage, her father had given articles of Rs. 2,30,000/- by means of Bank Account, Rs. 3,00,000/- by means of cash and further households articles and utensils etc. of Rs. 3,00,000/- and jewellary worth of Rs. 3,50,000/- approx. After marriage, she went to her matrimonial home and started living with the petitioner as a husband and wife 8 and they have blessed with one son Prins Kumar out of her marital wedlock, who is aged around 2 and 1/2 years. However, on 06.04.2017, the petitioner and his parents and relatives further started torturing her by demanding additional dowry of Rs. 5,00,000/- and had assaulted her grievously and had also tried to kill her by pouring kerosene oil on her body an due to fear, she along with her son went to her parental home. However, while living at her parental home, her husband has fully neglected her and her son and not taken any efforts for Bidai an used to neglect her. Thereafter she had filed Complainant Case No. 337 of 2018 against her husband and his relatives, which is pending in the Court of learned SDJM, Bermo at Tenughat. However, her husband-petitioner has no affection towards her and her son and she is unable to maintain herself and her son. Her husband- petitioner is capable to pay Rs. 20,000/- per month to her and her son and her husband has got own commercial land, Agricultural Land and house consisting ten (10) rooms which market value is Rs. 50,00,000/- (Rupees Fifty Lakh) is stated at Ichak Bazar, Hazaribagh Town. Her husband has got shop of Xerox and Mobile Shop in Ichak Bazar, Hazaribagh Town and earning Rs. 20,000/- per month from the said business. Her husband is earning Rs. 20,000/- per month by diary firm and agricultural and is also earning Rs. 10,000/- per month from the business of Generator and is earning Rs. 50,000/- per month from the rent of the house and which is in complete control and possession of her husband. Apart from this, her husband is earning money from money lending and also her husband is earning Rs. 1,50,000/- per month. However she is unable to maintain herself and her son and she has no source of Income. During cross-examination, she stated that her father in- 9 law was earlier an Engineer, but he has taken VRS and doing the work of money lending and her Devar is an Engineer in Delhi and is an unmarried. However, during further cross-examination, she stated that she is not aware of the educational qualification of her husband as she had not seen his educational testimonials. Her father in-law and mother in-law are old persons and she used to look after her father in-law and mother in-law, but he had never helped his father in-law in the matter of agriculture and the business. She has also shown ignorance that his father in-law is also having fracture in backbone and he had been admitted to a hospital. She further admitted that she is living in her maike since the April, 2017 and she was taken to her Maike from her sasural by her family members. She further admitted in para-28 that she will not come to her matrimonial home even after her husband is ready to keep her. She has also shown ignorance about the pendency of Original Suit No. 114 of 2019 instituted under Section 9 of the Restitution of Conjugal Rights, but also admitted for appearing in Original Suit No. 114 of 2019. She also denied the suggestion that she does not want to live with her husband as he is not an Engineer. However, she also admitted in para-35 that she wanted an Engineer to be her husband. She denied the suggestion for instituting this case only to get rid of her husband. 18. Thus, from scrutinizing the evidence of P.W.-5, Pritee Kapoor, it is evident that she has fully supported her case. She further asserted that her husband is running a shop of Xerox and Mobile Shop and running Hotel in partnership and also doing dairy firm business. 19. P.W.-3, Basant Narayan Mahtha is the father of the opposite party no. 1, who has supported the case of the Wife- 10 O.P.No.1 during his evidence by stating that the petitioner has neglected her and the petitioner has got commercial building of 10 rooms and its cost is approx. Rs. 50,00,000/- and has also got Xerox shop and Diary Farm and has got agricultural land and is earning income from the Xerox shop and Mobile shop is Rs. 20,000/- per month and from Diary Farm and Agriculture, he is earning Rs. 20,000/- per month and the petitioner is also earning from Generator Rs. 10,000/- per month and from house rent Rs. 50,000/- per month. However, during cross-examination, he stated that he had given articles i.e Earring of Gold -70 gm, Necklace of Gold 25 gm, Bangle of Gold 25 gm, Maang Tika of Gold 7 gm and Ring of Gold 5 gm and Silver Payal of 14 tola and fish of silver 5 tola, Silver bowl, pan patta, supadi almost 12 tola and kangan of gold 30 gm and nose pin of gold 2 gm to his daughter. 20. During cross-examination at para-22, although he stated that his daughter wants to live in her matrimonial home, but he refused to make vidhai of her daughter from the Court. He admitted that his son in-law has filed Original Suit No. 114 of 2019 before the learned Principal Judge, Family Court, Hazaribagh for restitution of conjugal rights. He further stated that his son in-law has got five acre of land in Ichak, Dharm etc. Mouza, but he had not seen him doing any agricultural work. He further admitted that he is competent to look after his daughter and maternal grand son and has been posted in Patratu Block as Panchat Sevak. 21. Thus, from scrutinizing the evidence of P.W.-3, Basant Narayan Mahtha, it is evident that he has also supported the case of his daughter. 22. P.W. -2, Prem Kumar Mahtha is the Maternal Uncle of the O. P. No. 1 and stated the same fact as stated by the P.W.-3, Basant 11 Narayan Mahtha, during his examination in-chief and as such, the same is not being repeated here. During cross-examination, he also admitted that they had brought the O. P. No. 1 from her matrimonial home to her maike on 27.05.2017 by preparing the list of articles. However, he could not say about the income of brother in-law i.e. the father of the O. P. No. 1 and he could not say about the house of the P.W.-3, Basant Narayan Mahtha. However, he stated that the husband- petitioner is earning more than Rs. One Lakh per month from the business. 23. Thus, P.W. -2, Prem Kumar Mahtha has also supported the case of the opposite party no. 1 (wife). 24. P.W.-1, Ravi Kapoor, brother of the O. P. No. 1. During his evidence, he stated the same facts as stated by the P.W.-3, Basant Narayan Mahtha and as such, the same are not being repeated here. 25. However, during cross-examination, he denied the suggestion that he had worked in the Xerox shop of the petitioner. However, he asserted that the petitioner has 20-25 decimals of agricultural land having 25 trees on the same, but he could not say regarding the name of the trees. He further admitted that he is not aware regarding the collection of rent by any tenants. He further admitted that his father is a Panchayat Sevak and is in Job and is getting approx. Rs. 50,000/- per month. He had further stated and admitted that he along with his maternal uncle had gone to Ichak and brought back his sister by preparing list of articles. He also admitted that the petitioner has filed Original Suit No. 114 of 2019 before the learned Principal Judge, Family Court, Hazaribagh for restitution of conjugal rights. He had denied the suggestion that the opposite party no. 1 is not willing to live with the petitioner. 26. Thus, from scrutinizing the evidence of P.W.-1, Ravi 12 Kapoor, it is evident that he has also supported the case of his sister i.e. O. P. No. 1. 27. It transpires from the evidence of P.W.-1, Ravi Kapoor at para-24, P.W. -2, Prem Kumar Mahtha at para-16, P.W.-3, Basant Narayan Mahtha at para-24, P.W.-4, Hriday Kumar at Para-24 and P. W.-5, Pritee Kapoor at para-27 that the opposite party no. 1 was brought to her Maike from her matrimonial home by preparing list of articles on 27.05.2017. 28. From perusal of the evidence of P.W.-1, Ravi Kapoor, P.W.-2, Prem Kumar Mehtha, P.W.-3, Basant Narayan Mahtha and P.W.-4, Hriday Kumar, it is evident that the wife-opposite party no. 1, Pritee Kapoor was brought to her parental home from the house of the petitioner i.e. the matrimonial home. 29. So far as oral evidence of the petitioner is concerned, OPW-1 is Santosh Kumar Singh, who had also filed evidence on an affidavit stating therein that he is the friend and having family relationship with the petitioner-husband and the wife-O. P. No. 1 has married with the husband-petitioner in June, 2015 at Pradhan Cafeteria Hotel, Near Budwa Mahadev Mandir, Hazaribagh as per Hindu Customs. After marriage, they have been blessed with one son, but thereafter there was change in the behavior of the applicant-wife and she started the destructing the costly articles like TV, Fridge and finally in the year 2017, she went to her parental home at Petarwar. However, despite best efforts by her in- laws members, she did not come to Ichak at her matrimonial home and started demanding maintenance amount. He further stated that the husband is an unemployed youth and lives in his joint family, but he has no separate source of income and for maintaining joint family, a photo copy shop by which there is earning of Rs. 8,000/- to Rs. 10,000/- and has no source of income. However, due to 13 institution of the case by the applicant-wife, her husband and her in-laws members are living in hardships and they are unable to pay any maintenance amount. 30. During cross-examination, he admitted to have Hardware Shop at Ichak Bazar in Hazaribagh. However, he denied the suggestion that the husband- petitioner has got one commercial building consisting of ten (10) rooms at Ichak Bazar and also earning from money lending business. He could not say as to when he had gone to the house of the applicant -wife. He also could not say that as to when and on which date, the applicant- wife has destroyed the TV and Fridge. He could say that as to when the applicant-wife came to her parental house from her matrimonial house. However, he is aware of dowry and torture case. He denied the suggestion that the husband is earning Rs. 50,000/- per month from house rent, Rs. 50,000/- per month from Xerox Shop and Rs. 20,000/- per month from the mobile shop and Rs. 10,000/- per month from agriculture and Rs. 10,000/- per month from diary and Rs. 50,000/- per month by Generator Business and Rs. 50,000/- per month from almirah shop, hotel business and money lending. He denied that the husband-petitioner is earning Rs. 1,50,000/- per month from his various source of income and is competent to maintain the applicant and her son. 31. Thus, from scrutinizing the evidence of OPW-1, Santosh Kumar Singh, it is evident that he has tried to support the case of the petitioner. However, his evidence is not reliable as he has flatly denied the properties and shops maintained by the petitioner and his family members. 32. OPW-2 is Nikhil Kumar Singh. During his evidence, he stated the same facts as stated by the OPW-1, Santosh Kumar Singh and as such, the same are not being repeated here. 14 33. During cross-examination, he also could say the dates as to when the applicant has destroyed the costly articles of the house of her husband. He also could not say that as to when the In-laws of the applicant- wife had gone to take back the opposite party- 1, Pritee Kapoor for Bidai. He also denied that the husband - petitioner has got commercial building at Ichak Bazar worth of Rs. 50,00,000/-. He merely stated that the husband-petitioner has got Xerox shop. He also denied the suggestion that the husband - petitioner is earning Rs. 50,000/- per month by Photo Copy business and Rs. 20,000/- per month by Mobile Shop, Rs. 10,000/- per month from agriculture and Rs. 10,000/- per month from diary and is earning approx. Rs. 1,50,000/- per month from the shop of Generator, Almirah shop, Hotel and money lending business and which is done only by the husband-petitioner. 34. Thus, scrutinizing the evidence of OPW-2, Nikhil Kumar Singh, it is evident that he is friend of the petitioner and he has not stated the correct facts and hence evidence of the OPW-2 is not reliable. 35. OPW-3 is Ashish Kumar. During his evidence, he stated the same facts as stated by the OPW-1, Santosh Kumar Singh and OPW-2, Nikhil Kumar Singh and as such, the same are not being repeated here. 36. During cross-examination, he admitted that he is unaware of the contents of the affidavit and the evidence filed by him. He has shown acquittance with the petitioner-husband. He admitted that the cost of one (1) Katha land is Rs. 15,00,000/- in Ichak and where house of the petitioner is situated near Shiv Mandir. He has shown ignorance that the petitioner has got 60 decimals of land behind the Shiv Mandir Ichak. He also denied the suggestion that the petitioner has got commercial house consisting ten (10) rooms 15 in Ichak Bazar and the cost of the building is approx. Rs. 50,00,000/- (Rs. 50.00 Lakh) and land behind the Shiv Mandir is in Crores. He also denied the suggestion that the petitioner is earning Rs. 50,000/- per month by Photo Copy, Rs. 20,000/- per month by Mobile Shop, Rs. 10,000/- per month by agriculture, Rs. 10,000/- per month by diary business and is earning approx. Rs. 1,50,000/- per month from the shop of Generator, Almirah shop, Hotel and money lending business. 37. Thus, scrutinizing the evidence of OPW-3, Ashish Kumar, it is evident that he is friend of the petitioner and he has not stated the correct fat and hence evidence of the OPW-3 is not reliable. 38. OPW-4, Abhishek Kumar is the husband- petitioner and has filed his evidence on affidavit by stating that he was married with the applicant-wife on 11.06.2015 at Pradhan Cafeteria Hotel, Near Budwa Mahadev Mandir, Hazaribagh and after marriage, they started living like husband and wife at his ancestral house situated at Ichak and they have been blessed with one son- Prins. Although he was living with his wife properly, but suddenly in the year 2017, his wife started the pressuring him for going to her parental home and started destroying the household articles and after seeing the mental condition of his wife, he called his in-laws members and when his in-laws members came, then his wife went with his son with in-laws members to her parental home by taking cloths, jewellary etc. for which he has given one written list on 27.05.2017 in presence of Hirday Narayan Mahatha and Prem Kumar Mahatha and other witnesses. His in-laws members assured that she will be sent back after recovering from illness. He has also gone to parental house of his wife -O. P. No. 1 several times at Petarwar, but his wife has refused to accompany with him and his in-laws made indecent behavior with him. His father in- 16 law is working and in Government Job and is getting more than Rs. 60,000/- per month and in this ego, his wife and his father in-law have refused to send his wife on Bidai on 07.04.2017, 15.12.2017, 08.03.2018 and 01.10.2018 respectively. He further stated that he is an unemployed person and is depending upon the photocopy shop with his father. He has also filed Original Suit No. 114 of 2019 before the learned Principal Judge, Family Court, Hazaribagh for Restitution of Conjugal Rights. He is still ready to keep his wife and children to Ichak and is ready to bear all the responsibilities and expenses of education of his child as per capacity with full honor and dignity. He has no agricultural land and he has no other source of income so he is not capable to keep his wife separately and maintain her. 39. During cross-examination, he admitted to have no documentary evidence for taking her Bidai on different dates. He admitted that one photocopy shop in Inchak Bazar, but denied for running his Grocery Shop with photocopy shop, but he admitted that his father in-law has retired and there are eight members in his sasural. He stated that his house is situated at distance of ten (10) minutes from Ichak Bazar and his house is at ancestral land and he cannot say about the ancestral land and has no agricultural land. He denied for running one Grocery Shop along with photocopy shop and is earning Rs. 50,000/- per month. 40. Thus, from scrutinizing the evidence of OPW-4, Abhishek Kumar i.e. the husband-petitioner, it is evident that he himself has admitted for sending his wife-O. P. No. 2 from her matrimonial home to her parental home. He himself admitted that a list of articles was also given when her wife was going to her parental home. From the evidence of OPW-4, it is evident that the husband-petitioner has completely denied the properties and his 17 source of income, although, it has been pointed out by OPW-1, Santosh Kumar Singh, OPW-2, Nikhil Kumar Singh and OPW-3, Ashish Kumar. The petitioner also admitted to have ancestral house and ancestral land apart from the photocopy shop at Ichak Bazar, Hazaribagh. Thus, the evidence of OPW-4, Abhishek Kumar does not help his case, rather it supports the case of his wife-O. P. No. 1. 41. In the matrimonial dispute, it is difficult for a wife to bring the income of her husband and she can point out the specific instances, but she is not in position to file documentary evidence of the properties of her husband. 42. While examining as OPW-4, Abhishek Kumar has concealed his properties, when it was specifically pointed out about his ancestral land and house, but he gave evasive reply, but although he admitted himself that he has got ancestral land and residence. 43. Thus, the stand taken by the petitioner in this Criminal Revision Application is not suffice to discredit the testimony and the evidences of the witnesses i.e. P.W.-1, Ravi Kapoor, P.W.-2, Prem Kumar Mahtha, P.W.-3, Basant Narayan Mahtha and P.W.- 4, Hriday Kumar led on behalf of the opposite party no. 1 i.e. wife of the petitioner. 44. It is well settled that husband is liable to maintain his wife and children. It is further evident that this is not a case of willful desertion by wife, rather this is a case of ouster of the wife from her matrimonial home by her husband i.e. the petitioner. 45. It has been held in the case of Sunita Kachwaha and Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para 7, 8 and 10 as follows:- 18 “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant- wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.” 46. It has been held in Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy reported in 2017 Vol (14) SCC 200 at paragraph 15, as follows:- 19 “Para 15:- The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-20152 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs 95.527. Following Kulbhushan Kumar v. Raj Kumari, in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23.000 to Rs 20.000 per month as maintenance to the respondent wife and son. 47. It has been held in the case of Dr. Swapan Kumar Banerjee Vs. State of West Bengal and Another reported in 2020 (19 ) SCC 342, that even a wife who has been divorced on ground of desertion is entitled to claimed maintenance and it has been held at para 5 and 7 which are as follows:- “Para 5. Thereafter, in Rohtash Singh v. Ramendri this Court took a similar view: (SCCP 184, para 11) 11. The learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights. Duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and 20 obligation to provide maintenance to her." “Para 7. No doubt, as urged by Mr Debal Banerjee. Explanation II to Section 125 9 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex- husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that event after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee.” 48. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-56, 59, 60 and 61 which are as follows:- “Para-56:-Similarly, in Tanushree & Ors. v A.S.Moorthy, the Delhi High Court was considering a case where the Magistrate’s Court had sine die adjourned the proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for maintenance under the D.V. Act were pending. In an appeal filed by the wife before the High Court, it was held that a reading of Section 20(1)(d) of the D.V. Act indicates that while considering an application u/S. 12 of the D.V. Act, the Court would take into account an order of maintenance passed under Section 125 Cr.P.C., or any other law for the time being in force. The mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. There is a distinction in the scope and power exercised by the Magistrate under Section 125, Cr.P.C. and the D.V. Act. With respect to the overlap in both statutes, the Court held : (SCC Online Del para 5) “5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two proceedings are independent of each other and have different scope, though there is an overlap. Insofar as the overlap 21 is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under Section 12 of the D.V. Act, the maintenance fixed under Section 125 Cr.P.C. shall be taken into account.” (emphasis supplied) Para-59:- In Sudeep Chaudhary v Radha Chaudhary25 the Supreme Court directed adjustment in a case where the wife had filed an application under Section 125 of the Cr.P.C., and under HMA. In the Section 125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial proceedings under HMA, and was not to be given over and above the same. Directions on overlapping jurisdictions Para-60:- It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant. Para-61:- To overcome the issue of overlapping jurisdiction, and avoid
Decision
conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be 22 required to move the concerned court in the previous proceeding.” 49. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:- “Para-77:- 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 not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. Para-78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it. Para-80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able- bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339] 23 Para-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.” Para-113:- It has therefore become necessary to issue directions to bring about 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.” 50. In view of the judgment reported in the case of Rajneesh Vs. Neha reported in 2021 (2) SCC 324, it is obligatory duty of the father to take care of education and social needs of his son. 51. Thus, it is clear that this is a case of ouster of wife-opposite party no. 1 from her matrimonial home by the husband-petitioner. 52. It is further evident that the husband-petitioner has filed Original Suit No. 114 of 2019 under Section 9 of the Hindu Marriage Act for Restitution of Conjugal Rights only after filing of Original Maintenance Case No. 210 of 2018 under Section 125 of the Cr.P.C. by the wife-Opposite Party No. 1. Thus, the aforesaid Original Suit No. 114 of 2019 has been filed only to contest on the point of maintenance amount and instituted in his defence by the petitioner. 53. It is further evident that neither the petitioner got examined his father nor his mother in support of his case, rather the petitioner has examined OPW-1, Santosh Kumar Singh, OPW-2, Nikhil Kumar 24 Singh and OPW-3, Ashish Kumar, who are interested witness an they were not aware about the date of any overt act done in the house of the petitioner by the wife-O. P. No. 1. They had flatly denied the existence of properties of the petitioner in a casual manner. 54. Thus, in view of the discussion made above and in view of the law laid down by the Hon’ble Supreme Court, this Court finds that no illegality has been committed by the learned Court below while passing the amount of maintenance of Rs. 6,000/- jointly towards maintenance allowance of the O. P. No. 1, Pritee Kapoor and O. P. No. 2, Prins Kumar from 14.09.2018 i.e. from the date of filing of the case filed under Section 125 of the Cr. P. C. 55. It is further evident that the order dated 21.01.2022 passed by the learned Principal Judge, Family Court, Bokaro in the Original Maintenance Case No. 210 of 2018 is a reasoned order and speaking one and as such, no interference is required from this Court and hence, the order dated 21.01.2022 passed by the learned Principal Judge, Family Court, Bokaro in the Original Maintenance Case No. 210 of 2018 is upheld. 56. Accordingly, Criminal Revision No. 208 of 2022 is dismissed, however, without any costs. Kamlesh/N. A. F.R. (Sanjay Prasad, J.)