The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 557 of 2017 --------- Ashok Kumar Jha @ Ayman Khan ... Petitioner -Versus- 1. Hema Jha 2. Aditi Jha CORAM: For the Petitioner For the O.P. … Opposite Parties --------- HON’BLE MR. JUSTICE SANJAY PRASAD --------- : Mr. Sidhrath Roy, Advocate : Mrs. Ritu Kumar, A.P.P. Dated: 14.09.2023 JUDGMENT --------- This Criminal Revision Application has been filed on behalf of the petitioner challenging the judgment dated 22.09.2016 passed by Sri Chandra Prakash Asthana, the learned Principal Judge, Family Court Ranchi , in Original Maintenance Case No. 106 of 2014 by which the learned Principal Judge, Family Court, Ranchi , has allowed the petition filed under section 125 of the Cr.P.C. by the opposite parties , directing the petitioner to pay Rs. 60,000/- per month to the opposite party No.1 and Rs. 40,000/- per month to the opposite party No. 2 from the date of filing of the case on 03.06.2014 by 10th of every succeeding month. 2. The case of the wife-O.P. No. 1, in brief is that the marriage between the parties was solemnized on 01.03.2002 in accordance with Hindu customs at Ranchi and at the time of marriage, several articles and ornaments were gifted by her parents to the petitioner and the couple then went to Bangalore and where they lived together, but soon thereafter they shifted in Delhi and it is stated that the petitioner demanded a 3 BHK flat in Delhi. Thereafter they went to Bangalore, where the husband petitioner demanded a flat and to which she objected, therefore , she was assaulted . However, in the month of August , 2003 , the petitioner 2 went to Muscat (Oman) for high earning and he called the O.P. No. 1 there in the month of January, 2004. During stay at Muscat, the O.P. No. 1 gave birth a female child on 13.11.2004 in Hill view Nursing Home , Ranchi who is the O.P. No. 2 herein. The petitioner again brought the opposite parties to Abu Dhabi , where also he demand a 3 BHK flat from the opposite parties. It is further stated that the opposite party No. 1 was abused and assaulted by the petitioner and it is further stated that the petitioner used to call her girlfriend in his house and finally the petitioner left the opposite parties at Ranchi, and the petitioner has failed and neglected to maintain the opposite parties although he is working in high post in a reputed company at Abu Dhabi and earning Rs. 35,000/- Dirham. Hence the opposite parties had filed the present petition under section 125 of the Cr.P.C. 3. Heard learned counsel for the petitioner and learned counsel for the opposite parties. 4. It is submitted by the learned counsel for the petitioner that the impugned judgment dated 22.09.2016 passed by the learned Principal Judge, Family Court in Original Maintenance Case No. 106 of 2014 is illegal and not sustainable in eye of law. It is submitted that Ex-parte order has been passed against the petitioner by the learned Principal Judge, Family Court, Ranchi . It is submitted that as a matter of fact, the petitioner has filed the written statement on 09.01.2005, but the learned Court below has wrongly observed that the petitioner was debarred from filing written statement. It is submitted that defence of the petitioner taken in the written statement , has not been considered by the learned Principal Judge, Family Court, Ranchi. It is submitted that order-sheet dated 16.07.2016, 09.08.2016 and 30.08.2016 clearly show that the evidence of the petitioner was closed , although no evidence was adduced on behalf of the petitioner and hence 3 without filing the written statement, the case could not be posted for by the learned Principal Judge, Family Court, Ranchi for the evidence of the petitioner and hence the learned Court below has wrongly observed and given its finding that no written statement was filed on behalf of the petitioner. It is submitted that proper opportunities were not given to the petitioner to lead the evidence and evidence was closed in only three (03) dates , It is further submitted that the income of the petitioner has not been assessed by the learned Court below and there is no finding on the annual income and monthly income of the petitioner. It is submitted that the learned Court below has wrongly drawn adverse inference against the petitioner. It is submitted that Exhibit-4 i.e. salary slip, has been wrongly considered by the learned Court below as it is a computer generated sheet and which neither show his signature nor sealed nor stamp of any authority . It is submitted that in the year 2011 3,000/- Dirham was to equivalent to Rs. 5,00,000/- of this country. It is submitted that the petitioner has also deposited Rs. 4,00,000/- before the parents of the O.P. No. 1 which was paid to be opposite party i.e. wife . It is submitted that wrong finding has been given in para 7,8,10 and 11 of the impugned judgment and finding recorded in these para is not correct. It is further submitted that the petitioner has filed supplementary affidavit on 11. 02.2022 and has enclosed the Income Tax Returns which show that the monthly income of the petitioner is approx Rs. 10,000/- per month. It is submitted that supplementary affidavit dated 26.04.2022 has been filed on behalf of the petitioner regarding Non-compliance of the order passed by this Court. It is submitted that the petitioner has tried to take his wife in the month of August 2019, but she flatly refused to go with him and the opposite party No. 1 has unnecessarily quarrelled with the petitioner and has refused to 4 accompany him. It is further submitted that the relationship between the petitioner and the opposite party has become so bitter that it is not possible for the petitioner to co-habit with the opposite party No. 1 under one roof. It is submitted that on the advice of the O.P. No. 1 (i.e. wife), he has transferred S.B.I. saving account from Delhi to Ranchi and added the name of the opposite party No. 1 as Joint Account Holder in the Saving account No. 10106212901. It is submitted that after adding her name as Joint Account Holder in the account, the O.P.No.1 kept issuing cheques in name of her father Jai Prakash Narian Jha and she kept giving them money without the knowledge of petitioner. She also kept away the passbook from the petitioner so that he may not be aware of transactions which was being carried out without his knowledge. It is submitted that after some time when the petitioner went to Ranchi for bringing the O.P.No. 1 in “Bidagiri”, then he was ill treated by O.P. No. 1 and her family members, and he was asked to keep away from his own parents and relatives , if he wants to continue relation with his wife the O.P. No. 1 . However he came back to NOIDA with the O.P. No. 1. It is submitted that worth mentioning that the O.P.No. 1 stayed almost all her married life
Facts
with the petitioner first in NOIDA, the Oman and finally in UAE ( Abu Dhabi) where he was working , but she never kept any relation with her in-laws and remained away from them and wanted to keep the petitioner also away from his relatives and family. It is submitted that after the O.P. No. 1, without any consent of the petitioner, kept sending money to her parents through cheques and cash regularly and she also used to flee away to Ranchi time to time. It is submitted that the petitioner tried his best to advice the O.P. No. 1 to behave nicely as a decent wife, but the O.P. No. 1 continued to harass the petitioner and his family individually and 5 even publicly by cruelty, rudeness and torture and even if the petitioner opposed, the O.P. No. 1 always threatened him to file a case for false charges under section 498-A of the I.P.C. and put his whole family in jail. It is submitted that the O.P. No. 1 attempted to give poison to the petitioner once while he visited her parents place, but somehow the petitioner understood her intention and did not eat the food and left their place immediately. It is submitted that the O.P. No. 1 had some connection with wrong people, and she tried to kill the petitioner through some henchmen on 20.02.2011 in Abu Dhabi, noticing this act, the petitioner gave her final warning to amend or else he will file for divorce due to her cruelty and constant tortures. It is submitted that the O.P. No. 1 abused, screamed and insulted the petitioner’s family friends publicly and created a big scene in a Mall in Abu Dhabi, just because they tried to console her to behave gently with the petitioner since they had witnessed in public. Finally the Manager and Security of Mall intervened and chased them out of Mall due to her screaming and abusing to the petitioner and to his family friends. Similar other incidents and abnormal scenes she had created many times, during her stay with the petitioner in Abu Dhabi. It is submitted that the O.P. No. 1 is fully in collusion with her parents and with their assistance she always demanded more and more money and in that pretext she demanded Rs. 4,00,0000/- for settlement of her brother’s divorce case in the last year of March, 2013. However, when the petitioner asked the parents of the O.P. No.1` to return the money, they said it was for maintenance of the O.P. No.1 while she stayed in Ranchi with them for one year and they need to much money because they want to charge extra rent from the petitioner to keep his wife i.e. O.P. No.1 at the place of her parents. It is submitted that due to dominating and interfering attitude of 6 parents of the O.P. No. 1 , their all three children had bad marital lives. Their only son Manish Jha got divorced in last year of 2013 , their elder daughter Jaya Jha and her husband Shankar Jha were almost on the verge of divorce in 2005 but settled down, and their second daughter Hema Jha ( O.P. No. 1) has been going through similar issued in her marriage for many years. It is submitted that since married the O.P. No. 1 crossed all her limits and put nothing to get back the conjugal relation restored and rejoining, causing great mental and physical torture and agony to the petitioner. It is submitted that the petitioner has filed a complaint case being C.R. No. 222 of 2013 which compromised in between the parties in the form of compromise arrived on 24.02.2011. It is submitted that the O.P. No. 1 has treated the petitioner with cruelty and she is questionable lady as per the activities as mentioned above. Also the petitioner has fear of life from the O.P. No. 1’s family members as they have kept all LIC original bonds in name of the petitioner and threatened him to kill and take away insurance money, since the O.P. No. 2 is nominee in all LIC policies. It is submitted that seeing the attitude of the O.P. No. 1 and her family members, the petitioner filed a divorce case under section 13 of the Hindu Marriage Act, 1955 on 13.12.2013 , which was registered as Matrimonial Case No. 239 of 2013 which was pending in the Court of learned Principal Judge, Family Court, Darbhanga. But finally the petitioner was advised to apply for divorce after April , 2014 ( one year of separated living from spouse) . It is submitted that the petitioner has filed a complaint case before the learned Additional Chief Judicial Magistrate, Benipur , against the O.P. No.1 and her family members bearing C.R. Case No. 292 of 2013 for the offences under sections 147,323, 341 , 386,420,120-B and 504 of the I.P.C. It is submitted that the O.P. No. 1 has not come with clean hands before the learned Court below since nowhere in the 7 petition, the O.P. No. 1 stated that the petitioner has already given divorce to this O.P. No. 1 and same was also communicated to the O.P. No. 1 . It is further submitted that the same is also in the knowledge of the O.P. No. 1 that the petitioner is converted and has accepted “ISLAM” at Abu Dhabi long back in the month of January , 2014 and has given divorce to the O.P. No. 1 as per Muslim Law and Custom at Abu Dhabi, UAE, and thereafter the petitioner got divorce from the Court of law at Abu Dhabi, UAE , on 17.03.2014 itself and the same has also been communicated to the O.P. No. 1 long back in the month of March , 2014 itself through the Indian Embassy , Abu Dhabi, UAE and photo copy of the divorce papers duly certified by the court of Abu Dhabi and attested by Indian Embassy have been annexed as Annesure-5. It is submitted that the O.P. No. 1 is a M.A. pass and has sufficient means of wealth since she took away jewellery worth approx. Rs. 20,00,000/- ( which was brought by the petitioner, since the time of her marriage) and she has time to time taken away huge amount of cash, LIC bonds and other valuable documents and still kept demanding more and more money, cars etc. in her name. It is submitted that the petitioner could not take part in the hearing of the case, since he was not informed by his counsel and the petitioner has not cross-examined the witnesses, examined on behalf of the opposite parties. and as a result, the learned Principal Judge , Family Court , Ranchi has passed an ex-parte judgment dated 22.09.2016 , directing the petitioner to pay Rs. 60,000/- per month to the O.P. No. 1 and Rs. 40,000/- per month to the O.P. No. 2 from the date of filing of the case on 03.06.2014 by 10th of every succeeding month. It is submitted that the Principal Judge, Family Court, Ranchi, has passed the ex-parte judgment of maintenance , directing the petitioner to pay Rs. 60,000/- + Rs. 40,000/- to the 8 opposite parties by way of maintenance without assessing the real income of the petitioner at the present, and as such, the quantum of maintenance is high , excessive and beyond the capacity of the petitioner and hence this Criminal revision application may be allowed. 5. On the other hand, the learned counsel for the O.P. Nos. 1 and 2 has submitted that judgment passed by the learned Court below is fit and proper and no interference is required. It is submitted that the petitioner has neglected his wife and daughter who are the opposite parties and as such the opposite parties are entitled to receive the maintenance from the petitioner . It is submitted that several witnesses have been examined on behalf of the O.P. No.1 and they have fully supported the case. It is submitted that the P.W. 1, P.W. 2, P.W. 4 namely Piyush Anand, Prem Lala Jha and Jai Prakash Narayan Jha have fully supported the case of the O.P. No.1 (Petitioner in court below). It is submitted that the P.W. 3 is the O.P. No. 1 herself and she has fully supported her case for grant of maintenance and has shown neglect by her husband . It is submitted that the documents marked “X”, “X/1”, “X/2” have fully falsify the case of the petitioner . It is submitted that photograph marked as X/3 showing Ashok Kumar Jha i.e. this petitioner with one Zainab Khan clearly reveals that the petitioner is having with extra marital relationship with another girl . It is submitted that the petitioner was also working in the films and serials. It is submitted that the petitioner is Senior Finance Manager in Reem Redimix Company Ltd. At Abudhabi and earns Rs. 35,000 Dirham and alongwith bonus he earns 38,000/- Dirham per month and which is supported by Exhibit -5 which is an E-generated paper showing his salary in 2011. It is submitted that the petitioner also worked as an Actor in a picture “Krantipath” made in 2012 and in which he has played the role of 9 an I.P.S. Officer. It is submitted that the O.P. No. 1 has done M.A. in Geography but she is not doing any work and she has left study long ago and as such she is entitled to maintenance . It is further submitted that the petitioner had even violated the order passed by the Co-ordinate Bench of this Court on 24.06.2019 and he has violated the directions of this Court several times , though he was granted interim protection on 24.06.2019 , however later on an another Co-ordinate Bench of this Court, had recalled the interim protection vide order dated 13.07.2021 against this petitioner. It is submitted that the petitioner has failed to take his wife and his daughter and has not converted into Islam and only to save himself from paying the maintenance order, he has taken this plea and hence this Criminal Revision may be dismissed. 6. Perused the record of this case and Lower Court Records of this case and considered the submission of both the sides. 7. It transpires that the O.P. No. 1 has filed M. case No. 106 of 2016 under section 125 Cr.P.C. on 03.06.2014 and which was admitted on 04.06.2014 and notices were issued upon the petitioner who was the opposite party before of the learned Court below. 8. It transpires that the petitioner had appeared before the learned Court below on 05.07.2014 though a counsel even the O.P. –the petitioner was directed to appear physically but he had not appeared physically, however the petitioner had filed his show cause on 09.01.2015 and the case was fixed for several dates and in the meantime, a petition was filed for grant of interim maintenance, on behalf the O.P No. 1 and 2 and the then the Principal Judge, Family Court, Ranchi vide order dated 17.03.2015 had directed the petitioner to pay Rs. 10,000/- to his wife per month and Rs. 5,000/- to his daughter per month total Rs. 15,000/- per 10 month to the O.P. Nos. 1 and 2. 9. It transpires that on 09.01.2015 one reply to interim maintenance was filed on behalf of the petitioner ( i.e.the husband) and the learned Court below had passed order on 17.03.2015 for grant of interim maintenance to the O.P. No. 1 and the O.P. No. 2. 10. It transpires that the wife- O.P. No. 1 has got examined four (04) witnesses in support of her case who are as follows:- (i) P.W. 1 is Piyush Anand, cousin brother, (ii) P.W. 2 is Prem Lata Jha, (iii) P.W.3 is Hema Jha, and (iv) P.W. 4 is Jai Prakash Narayan Jha 11. It transpires that the wife-O.P. No. 1, has got marked as the following documents as Exhibits as follows:- (i) Passport of Hema Jha has been marked Ext.1, vide, E-5201657 valid from 16.12.2003 to 15.12.2013 and passport of Aditi Jha J-1132271 has been marked Ext. 1/A2, which shows the grants of entry from 10.01.2010 to 09.01.2015. (ii) Undertaking given by the O.P. dated 31.03.2013 has been marked Ext. 2 ( vide ordersheet dated 08.09.2016) . (iii) Receipt of fee etc. Aditi issued by Bishop Westcott Girl’s School have been marked Ext. 3 to 3/c. (iv) Joint Passbook of both the parties with SBI CMPDI Branch, Doranda , Ranchi has been marked as Ext.4. (v) Computerized copy of Pay roll of the petitioner for the month of January, 2011 has been marked Ext.5. 11 12. It transpires that the wife- O.P. No. 1, has got marked the following documents for its identification which are as follows:- (i) Photocopy of Passport of the O.P. has been marked “X”, (ii) Photocopy/E. generate copy of photograph C.A Ashok Kumar Jha has been marked “X/1” (in two sheets) for its identification, (iii) Photocopy of photographs of “Kranti Path”: Picture has been marked “X/2” for its identification, (iv) Phtocopy of photograph of Ashok Kumar Jhar with alleged photograph of Jainab Khan has been marked “X/3” for its identification, and (v) Photocopy of photograph of Ashok Kumar Jha has been marked “X/4” for its identification. 13. Neither any witness were produced on behalf of the petitioner nor document has been marked as Exhibit on behalf of the petitioner. 14. Thereafter the learned Principal Judge, Family Court , Ranchi vide impugned judgement dated 22.09.2016 has directed to the petitioner to pay maintenance amount to the O.P. No. 1 and the O.P. No. 2 as indicated above and hence appreciation of the evidence is required. 15. Although the learned Court has observed that W.S. has not been filed on behalf of the husband – the petitioner but it appears from the Lowe Court Record that the petitioner has filed his show cause/written statement-cum-reply to interim maintenance on 09.01.2015 before the learned Principal Judge, Family court Ranchi. 16. It transpires from the show cause /written statement cum reply filed on behalf of the petitioner that the petitioner has 12 claimed that the marriage between the petitioner and the O.P. No. 2 has not been consummated. Although he has stated that after his solemnization of marriage, the petitioner lived with the opposite party No.1 for a certain period peacefully and has been blessed with baby who is aged about ten (10) years. The petitioner has further pointed out that he also filed the case against the O.P. No. 1 and family members bearing CR Case No. 299 of 2013 for alleged offences under section 147/323/341/386/420/120(B), 504 of the I.P.C. and has also enclosed the copies of complaint petition in his show cause. It also appears from his show cause that the petitioner has also filed the divorce case under section 13 of the Hindu Marriage1955 on 03.12.2013 which was instituted as Matrimonial Case No. 239 of 2013 which was pending in the Court of Principal Judge, Family Court , Darbhanga and also enclosed the copy of plaint of said Matrimonial Suit and the petitioner has also enclosed the copy of the compromise petition as Annexure “C” . Even one compromise petition has been filed, which is said to be written by the O.P. No.1 , though it is said to have contain signature of the O.P. No. 1 Hema Jha but it is disputed by OP. No. 1 17. The petitioner also claimed that he was converted into Islam at Abu Dhabi in the month of January, 2014 and has given divorce to the O.P. No. 1 as per Muslim Law on telephone. The petitioner also enclosed the photocopy of the document said to be issued in the period of “Confirmation of First Divorce Subject to Return of Marriage” issued from Judicial Department at (Emirate of Abu Dhabi ) issued on 17.03.2014 and it reveals that the petitioner is said to have given divorce to his wife over the telephone by saying to her “You are divorced”, however the above document reveals it has been signed only by the petitioner and not by the O.P. No. 1 Hema Jha and even the concerned authority has 13 disputed the divorce in absence of the O.P. No. 1. 18. Thereafter the petitioner has send one letter to the O.P. No. 1 with the Divorce Certificate from Abu Dhabi Court on 23.03.2014, however it reveals that the petitioner has signed his name Ashok Kumar Jha , though he has stated that he had been converted to Islam . Thus the above document has been filed only to defeat the claim of the O.P. No. 1 and the O.P. No. 2 . 19. So far the oral evidence is concerned, P.W. 1 Piyush Anand who is the cousin brother of the O.P. No. 1 has stated during his examination in chief that the marriage between the petitioner and the O.P. No. 1 Hema Jha was performed on 01.03.2002 at Ranchi as per Hindu Custom and after marriage the applicant – O.P. No. 1 had started living with the petitioner in her matrimonial home and thereafter they went to NOIDA, MUSCAT, ABU DHABI where they lived as husband and wife and in the meantime the applicant –O.P. No. 2 was born at Ranchi in 2004 . He further stated that the O.P. i.e the petitioner was working as a Main Actor and is Producer of the film “ Kranti Path” and was in the role of officer of Indian Police Service and film was prepared in the back ground of Dhanbad. He further stated that the petitioner had sent Rs. 2,50,000/-before him for procuring and the management of hotel, location, camera, light etc. and he had made entire payment in advance to all concerned and thereafter the petitioner alongwith entire team came to Dhanbad and had shooted the film for ten (10) days. He further stated that in the year 2013 both the petitioner and the O.P. No. 1 had come to Ranchi from Abu Dhabi and requested this P.W. 1 also to come to Ranchi and where he was apprised by the petitioner that he had got some work in Saudi Arab and all the thing have to be managed from the beginning and hence until the entire arrangement is made in Saudi Arab , the Applicants –the O.P. No. 1 and 2 shall remain in Ranchi till then and for which he 14 has deposited Rs. Four Lacs (4,00,000/-) for the expenditure of one year and which included also fee of the O.P. No. 2. Thereafter the petitioner took him to S.B.I. , C.M.P.D.I., Branch, Ranchi and has deposited Rs. Four Lacs (4,00,000/-) in the bank account of the Hema Jha i.e. the O.P. No. 1 and has assured that if education is extended for further one year then he will deposite Rs. Four Lacs (4,00,000/-) or the required amount in the next year also. Thereafter the O.P. No. 2 was admitted at Bishop Westcott School, Doranda , Ranchi and where she is still reading. He also stated that the petitioner assured to take his wife and daughter to Saudi Arab after making all the arrangement but after going from Ranchi, the petitioner never took his wife and daughter to Saudi Arab but once the petitioner had taking them to his village situated at Darbhanga but they again returned to Ranchi . He further stated that the petitioner used to torture the applicant No.1 –O.P. No. 1 without any reason and has left her in Ranchi and the petitioner has not paid anything after said one year for the maintenance and the education of his daughter and the father of applicant- O.P. No. 1 has retired from the C.C.L several years ago. He further stated that the O.P.-petitioner has been working as a Chartered Accountant in NOIDA, Muscat, Abu Dhabi etc. and as per last information the petitioner was working at REEM READMIX , LLC in Abu Dhabi in company and where he was taking 35,000/- Dirham per month and hence applicant –O.P.1 1 and 2 are entitled to receive 20,000/- Dirham per month as per life standard from the petitioner. The witness was also cross-examined on 15.02.2016 on behalf of the petitioner and the petitioner has admitted the he is husband of applicant –the O.P. No. 1, though he has shown ignorance on the monthly expenses of study but he has stated that Hema Jha i.e. O.P. No. 1 and he i.e. the husband are living 15 separately since year 2013. Although he has not seen the torture made upon his sister but he had heard the same. He further stated that the applicant –the O.P. No. 1 has passed M.A. He further stated that he learnt information from the applicant- O.P. No.1 that the petitioner is earning 35, 000/- Dirham per month but he had not seen. He also stated that if fifteen (15) in multiplied to 20,000/- Dirham then it will be converted into Rupees and the applicants –the O.P. No.1 and the O.P. No. 2 required 20,000/- Dirham i.e. Rs. 3,00,000/- (Rs. 3 00 Lacs) per month for their monthly expenses. 20. Thus from the scrutinizing the evidence of P.W. 1, it is evident that he has fully supported the case of the applicants –the O.P. No.1 and the O.P. No. 2 and has stated that Hema Jha i.e. O.P. 1 and her husband are living separately since the year 2013 and the petitioner has not been paying any maintenance amount and had paid only Rs. 4,00,000/- in the year 2013 for their expenses for one year and thereafter since year 2014 he is not paying any expenses to them and thus P.W. 1 has fully supported the case of the petitioner. 21. P.W. 2 is Prem Lata Jha, who is the mother of O.P. No. 1 and stated during her examination-in-chief that the marriage between the petitioner and her daughter i.e. the O.P. No. 1 was performed on 01.03.2002 in Ranchi at C.M.P.D.I. Marriage Hall as per Hindu Custom and after marriage the applicant No. 1 –the O.P. No.1 went to her matrimonial home and from their they went to Noida, Banglore, Muscat and Abudhabi as husband and wife and the meantime the applicant No. 2 –the O.P. No. 2 was born in the year 2004 in Ranchi , she has further stated that at the time of marriage they have given several house articles, Cash, Jewellery and precious articles beyond their capacity but after 16 the marriage the petitioner and the family members were not satisfied and the petitioner used to torture the applicant No. 1 –the O.P. No.1 and they started demanding one three (03) BHK flat at New Delhi. Thereafter the petitioner and the O.P. No. 1 went to Banglore at the work place of the petitioner and where the applicant No. 1 –the O.P. No.1 was tortured for the flat both the physically and mentally. Thereafter the petitioner went to Muscat, Oman in August 2003 for higher income and where applicant No. 1–the O.P. No.1 went there in January 2004 and applicant No.1 – the O.P. No.1 had conceived then, but the petitioner sent applicant No.1 –the O.P. No.1 to Ranchi for the delivery of the child and the applicant No. 2 –the O.P. No. 2 was born on 13.11.2004 at Hill View Nursing Home Ranchi. After giving birth to a daughter both the applicants –the O.P. No.1 and the O.P. No. 2 had gone to Muscat to live with the petitioner in May 2005. Thereafter the petitioner joined new service in Abudhabi after leaving his old job in January, 2007 and applicants –the O.P. No.1 and the O.P. No. 2 were sent to her residence, however in April, 2007 the applicant No. 1 –the O.P. No.1 again went to Abudhabi to live with the petitioner where applicant No. 1 –the O.P. No.1 was again pregnant for the second time in the year 2009 and the petitioner left the applicant No. 1 –the O.P. No.1 at Ranchi again in May , 2009 . Thereafter the parents and the maternal uncle of the petitioner came to their residence at Itki Road Ranchi and started demanding a Flat at New Delhi , however they were not in the position to give any flat to the petitioner in New Delhi as the father of the O.P. No. 1 had already retired. She further stated that the applicant No. 1 –the O.P. No.1 gave birth to a dead daughter on 26.06.2009. Thereafter the petitioner again took both applicants –the O.P. No.1 and the O.P. No. 2 with them to Abudhabi, however the behaviour of the petitioner has changed after birth of 17 dead daughter and he was involved in taking wine and also having extra marital relation and he started assaulting the O.P. No. 1 and he used to threaten her of burning her and had also threatened for arresting her in Abu Dhabi for living there illegally. She has stated that in the year 2010 the petitioner had mercilessly assaulted the applicant No. 1 –the O.P. No.1 during which one ear of the applicant No. 1 –the O.P. No.1 is permanently damaged. 22. She further stated that in the meantime the petitioner started making film and was acting as a main Actor but he met with an accident in film shooting and his leg was fractured and the shooting was stopped. However, after recovery the petitioner again started indulging in bad habits and he used to torture her daughter mentally and physically and also used to put pressure upon her daughter i.e. O.P. No. 1 who returned to Ranchi. She also stated that in March, 2013 the petitioner and applicants –the O.P. No.1 and the O.P. No. 2 came to her house and the petitioner informed them of huge expenditure in the film and hence he left the applicants –the O.P. No.1 and the O.P. No. 2 to her resident for one year and give Rs. 4,00,000/- in the bank account of the applicant No. 1 –the O.P. No.1 for expenditure of one year and assured that he will again pay Rs. 4,00,000/- even after one year but he failed to do so. Thereafter in April , 2014 that when the applicants–the O.P. No.1 asked the petitioner to call her and to live with him then the petitioner and family members demanded a Flat in New Delhi by stating that unless the flat is purchased they will not keep the applicants–the O.P. No.1 and the O.P. No. 2 with them. She has stated that the applicants –the O.P. No.1 and the O.P. No. 2 have no source of income and they are fully dependent upon the petitioner for their maintenance and for the education of O.P. No. 2 . She further stated that the petitioner is working as a Chartered Accountant since last 16-17 years and presently he has been posted 18 on the post of Senior Finance Manager in “Reem Redemix Co. L.L.C., Abudhabi and is earning 35,000/- Dirham per month and apart from this he is also doing acting in several T.V Serials of Balaji Teli Film and from which he has additional source of income and hence the applicants–the O.P. No.1and O.P. No.2 are entitled to 20,000/- Dirham ( Rs. 3,00,000/- per month for their maintenance and expenditure. 23. Though the witness was examined in chief on 19.03.2016 and she was discharged without cross-examination on 19.03.2016 by the learned Principal Judge, Family Court because
Legal Reasoning
It is well settled from the judgment quoted in case of Kiran Tomar & Ors Vs State of Utter Pradesh & Another reported in 2022 live law (SC) 904 that the Income Tax Return filed by the parties are not sufficient to show the income of the parties and it is increasing pendency on the courts and parties 32 conceals the income by showing income in lower side. 58. It has been held in Kiran Tomar & Ors Vs State of Utter Pradesh & Another reported in 2022 live law (SC) 904 at paragraph 10 & 11, as follows:- “Para-10:- On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met.” “Para 11:- In this view of the matter, the High Court was not justified in setting aside the order of the Family Court on the basis of the reasoning which has been extracted above in the earlier part of this order.” 59. Apart from this, it is further evident that the petitioner has stated in his show cause-cum-written statement and rejoinder to the interim maintenance petition thus has stated that he was regularly attending the temple at ISKCON and he was going to the ISKCON regularly and hence it appears to be unbelievable that he was converted into Islam if he was daily going to ISKCON temple in Abu Dhabi, Muscat and U.A.E. regularly. 60. It further appears that the petitioner has claimed that the O.P. No.1 had tried to take his life through her henchmen in Abu Dhabi on 20.02.2011 by attacking upon him and he managed to save himself. However this statement appears to be absurd and far from him satisfactory and no such complaint in writing has been filed before the complainant authority in Abu Dhabi and no 33 such document has been brought on record . Even the petitioner has failed to prove this fact by adducing his evidence, although he was given several opportunities on 09.08.2016, 21.08.2016 and even the case fixed for argument on the date of 30.08.2016, 01.09.2016 ,08.09.2016 respectively. Thus the assertion of the petitioner that the O.P. No. 1 (–wife) alongwith some antisocial elements had attacked him in Abu Dhabi on 20.02.2011 is unbelievable, hence rejected. 61. The petitioner has claimed that he was assaulted by the wife –O.P. No. 1 and his in-law-members and for which he was compelled with filed a complaint case against them in /Ranchi for the offence under section 323,324, 379 of the I.P.C. for taking away his Rs. 20,00,000/- . This allegation also appears to be absurd and the complaint No. CR. No. 299 of 2013 for the offence under section 147/323/341/386/420/120 B /504 of I.P.C. appears be filed on behalf of the petitioner only to put pressure upon of the O.P. No. 1 and her family member for not contesting the case and for harassing them. 62. It also transpires from the order passed by the Co- ordinate Bench of this Court on 24.06.2019 and 13.07.2021 that although he had his promised to pay Rs. 60,000/- to O.P. No.-1 but he had paid only 20,000/- only to the O.P. No.1 and he has also not taken away his wife i.e. O.P. No. 1 and daughter i.e. O.P. No.2 in Mumbai.Therefore the Co-ordinate Bench of this Court (Mr. Justice Rajesh Kumar) vide order dated 13.07.2021 had recalled and vacated the interim order passed in favour of the petitioner on 24.06.2019. 63. Therefore it is evident that the petitioner is also disobeying the Undertaking given before the Co-Ordinate Bench this Court on 24.06.2019 before the Co-ordinate Bench ( Hon’ble Mr. Justice Amitav Kumar Gupta) of this Court and on failure of 34 his undertaking the interim order was recalled on 13.07.2021 by the Co-ordinate Bench of this Court (Mr. Justice Rajesh Kumar). 64. 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:- “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. 65 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 35 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 subpsistence 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] 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 the dealing 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 with is 36 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.” 66. 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:- “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. 37 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.” 67. It has been held in the case of Abhilasha Versus Parkash and Ors. reported in (2021) 13 SCC 99, at para 27 to 31, which are as follows:- “Para-27:- Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla’s Principle of Mohammedan Law, this Court in State of Haryana and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: (SCC p. 196) “40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]” Para-28:- Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property. Para-29:- Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if 38 she is unable to maintain herself by enforcing her right under Section 20. Para-30:- We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, which was a case under Section 125 Cr.P.C. A Muslim wife with her two daughters and a son filed an application claiming maintenance under Section 125 Cr.P.C. The trial court allowed the maintenance to the wife and children from her husband. The husband after divorcing the wife filed application in the trial court seeking modification of the order in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court modified the order insofar as the grant of maintenance of wife was concerned but maintained the order of maintenance to each of the three minor children. The husband challenged the order by means of revision, which was dismissed by the Revisional Court. An application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned. The High Court held that minor children were not entitled for maintenance under Section 125, Cr.P.C. A special leave to appeal was filed questioning the judgment. This Court dealing with Section 125 Cr.P.C. as well as Act, 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. This Court held that there is no conflict between the two provisions. Para-31:- This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 of the above judgment: (Noor Saba Khatoon Case, SCC pp. 238-39) “7. ...Under Section 125, CrPC the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as 39 he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 CrPC, cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3 (1)(b) of the 1986 Act.” (emphasis in original) 68. 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 40 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 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.” 69. It has been held in Chaturbhuj Vs Sita Bai reported in (2008 ) SCC 316 at paragraph 8, as follows: Para 8:- “In and illustrative case where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that he wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt V. Kamla Devi it was observed that wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “ unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under section 125 Cr.P.C. 70. It is well settled that computer generated copy or E-generated copy of salary slip is admissible in evidence . 71. In view of this , I fine , it is evident that no illegality has been committed by the learned Court below by allowing the 41 Maintenance case in favour of the O.P. No. 2 and O.P. No. 3 . 72. It is evident that the petitioner has thoroughly neglected his wife and daughter i.e. O.P. No.1 and O.P. No. 2 respectively till date and has even disobeyed the order passed by this Court . 73. It is further evident that the petitioner has failed to disclose his I.T. returns for the assessment years 2011-2012, 2012 - 2013, 2013-2014 respectively properly. 74. However , after filing of this Criminal Revision Application before this Court, the petitioner has enclosed the I.T. returns for several years starting from the year 2014-2015, 2015- 2016, 2016-2017, 2018-2019 and 2019-2020 respectively. 75. Thus, the petitioner has completely concealed the fact of his real income from the learned Court below and also from this Court. 76. It further transpires from the record and the evidence and also documents marked as “X” for it identification that the petitioner is a well qualified Charted Accountant for the last 15-16 years and he has worked in various organisation and he was earning handsomely, prior to his marriage with the O.P. No. 1 and even after marriage with the O.P. No. 1. Therefore the petitioner is duty bound to maintain his wife and the daughter i.e. the O.P. No. 1 and the O.P. No.2 respectively. 77. Therefore in view of discussion made above, it is evident that this Criminal Revision No. 557 of 2017 is devoid of merit but quantum of maintenance amount can be reduced with respect to the O.P. No. 1. 78. So far as quantum of maintenance amount is concerned same can be considered and it is directed that the petitioner shall pay Rs. 50,000/- per month to the O.P. No. 1, however so far as maintenance amount of the O.P. No. 2 is 42 concerned , the same is upheld and the petitioner is directed to pay the maintenance amount of Rs. 40,000/- per month to his daughter i.e. the O.P. No. 2 . Accordingly the maintenance amount is modified to the extent , the petitioner shall pay Rs, 50,000/- per month to wife i.e. the O.P. No. 1 and Rs, 40,000/- per month to his daughter i.e. the O.P. No. 2 , total amounting Rs. 90,000/- per month from the date of filing of the application under section 125 Cr.P.C. in year 2014 on 03.06.2014. 79. Thus This this Criminal Revision No. 557 of 2017 is dismissed with modification in quantum of maintenance with respect to O.P. No. 1 only, as indicated above. (Sanjay Prasad, J.) Bibha/
Arguments
as learned counsel for the petitioner had failed to appear before the learned court below despite repeated call. However, the P.W. 2 was cross-examined on recall on 31.05.2016 in the light of order dated 30.05.2016 passed by the Learned Court below. 24. During cross-examination P.W. 2 has stated that her son has been divorced but she does not know the year of his divorce. She further stated that she was not aware as to why this petitioner has demanded a Flat at New Delhi. She further stated that her husband has sold a flat in Patna and has received a consideration amount of Rs. 11,00,000/-. She further stated that the petitioner was shooting a film “Dark Rainbow or Black Rainbow” and also shooting another film which was taking place in Dhanbad then he met an accident and his leg was fractured, however she has not seen those film and she is not aware of the name of any other actor. She also stated that she has no any papers of the petitioner with regard to his income and the expenditure of the Applicant No. 1 and No. 2 -O.P. No. 1and O.P. No. 2 is approx. Rs. 1,00,000/- per month. 25. Thus, from scrutinizing the evidence of P.W. 2, Prem Lata Jha , it is evident that she has fully supported the case of the 19 applicant No. 1 and No. 2 -O.P. No. 1and O.P. No. 2 and even she has taken the name of two films and stated that shooting of the said films were done in Dhanbad and stated that the petitioner has left the Applicant No. 1 and the Applicant No. 2 -O.P. No. 1 and the O.P. No. 2 to her Maike since year 2013. 26. P.W. 3 is Hema Jha i.e the applicant No. 1 –O.P. No. 1 and she also filed her evidence on an affidavit stating therein that she has been married with this petitioner on 01.03.2002 at C.M.P.D.I., Marriage Hall in Ranchi as per Hindu Customs and after marriage she alongwith this petitioner went to her matrimonial home and thereafter she lived with the petitioner at Noida, Bengaluru, Muscat and Abu Dhabi like a husband and wife and in the meantime one daughter has been born in the year 2004 in Ranchi. She further stated that at the time of her marriage, her parents had given house articles, Cash, Gold Jewellery etc. and she was taken to her matrimonial home. However, the petitioner and her family member were not satisfied with the articles and started taunting her and her parents and thereafter they demanded one three BHK flat in New Delhi. She further stated that after some time they took side with the petitioner also and the petitioner had tortured her mentally and physically and thereafter they went to Bengaluru and the petitioner has tortured pher mentally there also. She further stated that year August 2003 the petitioner had gone to Muscat, Oman for higher income and the Applicant No. 1 -O.P. No. 1 also went there in January, 2004 and there she became pregnant and the petitioner brought her to Ranchi for delivery of the child and after 2-3 months she has given birth to a daughter i.e. the O.P. No. 2 at Hill View Nursing Home, Ranchi. She further stated that after birth of the daughter, she alongwith the petitioner went to Muscat in May 2005, however in January , 2007 the petitioner left his old job and joined a new job 20 at Abu Dhabi and at that time also, the petitioner brought her back to Ranchi , however in April , 2007 she i.e. O.P. No. 1 again went to live with the petitioner in Abu Dhabi and where she became pregnant again in the year 2009 . She further stated that although her father had just earlier retired from C.C.L. and who had also made expenditure of his post retirement benefit in the education and maintenance . She further stated that her family member are not in a position to give a Flat at New Delhi to the petitioner and when she refused to meet his demand then he became angry with her. She further stated that she had given birth to a dead girl child on 26.06.2009 and August, 2009 the petitioner took her and daughter to Abu Dhabi from Ranchi. However after death of her second girl child, the behaviour of the petitioner was completely changed and he indulged into the company of wrong people and he was addicted to wine and the petitioner was also having extra marital affairs and whenever she tried with the petitioner to keep him away from bad habits, then he used to assault her and used to threaten her for burning and also for getting her arrested for living illegally in United Arab Emirates and assaulted her mercilessly in year 2010 and due to which her ear got damaged permanently. 24. She further stated that in the meantime the petitioner had stated making films and in which he was acting as an Actor and during shooting of the film, his leg was fractured and shooting was stopped but after recovery, the petitioner again indulged into bad activities and thereafter for many times him he used to torture her physically and mentally and the petitioner used to put pressure upon her for returning to Ranchi . She has further stated that in March 2013 the petitioner alongwith the Applicant No. 1 and No. 2 -O.P. No. 1and O.P. No. 2 21 came to Ranchi and at that time also the petitioner asked them to remain in Ranchi and due to production of film he became indebted and informed her that he will be returning by keeping the appellant No. 1 and No. 2 - O.P. No. 1 and O.P. No. 2 with the house of her parents in Ranchi and deposited Rs. Four lakhs (4,00,000/-) in her bank account for expenditure of one year and also assured that if they remain beyond one year then he will further deposit Rs. four lakhs (4,00,000/-) in her bank account. She has proved the written assurance dated 31.03.2023 (submitted by the petitioner) as Annexure –2. She further stated that when she asked the petitioner to keep her then the petitioner and his family member had started torturing her by saying unless a flat is purchased in New Delhi in the name of the petitioner, then they will neither keep the Applicants with them nor they give any amount for their maintenance. She further stated that she has no source of income and she is fully dependent upon her parents for her maintenance and also for the maintenance of her daughter i.e. the O.P. No. 2. 27. She has further stated that the petitioner is working as a Chartered Accountant since 16-17 years and presently posted as Senior Finance Manager in Reem Readmix Co. L.L.C., Company and is getting 35,000/- Dirham per month as salary and also getting one-month salary of bonus also and thus, the petitioner is getting 38,000 Dirham per month. She also stated that apart from this, the petitioner is acting in Balaji T.V. serials. She has also submitted the Pay Roll sheet of Reem Readmix Co. L.L.C., Company for the month of June, 2011 which has been marked as Exhibit - 5. She further stated that she requires 20,000/-Dirham (Rs.3,00,000/-) for their maintenance per month and she has also enclosed her pass book which has been marked as Exhibit-3. She obtained the original Visa which has been marked as Exhibit- 1. 22 She has further enclosed the C.V. of the petitioner and also enclosed the computer generated C.V. of the petitioner marked as has Exhibit - 5. She also proved the poster of the Film “ Krantipath” and photos and news of computer generated regarding the film of the petitioner. She further stated that the petitioner has levelled false and baseless allegations against her in his show cause. 28. During the cross-examination she has stated that the petitioner and in-law members had demanded 3 BHK flat during Diwali from her. She further stated that the expenses of arriving and going to Muscat from Ranchi and arriving from Abu Dhabi to Ranchi has been borne by the Company and fare of one person from one side is approx. Rs. 32,000/-. On being taken to question and answer form, she has stated that she had not made any complaint to the police for sustaining mental and physical torture at the hands the petitioner but has informed her father from Abu Dhabi on phone on 30.11.2010. She has stated that the petitioner is still working in Abudhabi in Reem Readmix Co. L.L.C., Company and petitioner is getting one month salary as bonus. She further stated that a the petitioner is drawing excess salary in Reem Readmix Co. L.L.C., Company. She further stated that she has passed M.A. in Geography but she has not made any effort to secure the job and for earing the money because she has left her study much earlier and she is mentally disturbed since 2013 due to case. 29. This P.W. 3 i.e. O.P.-1 was again re-examined on recall on 08.09.2016 in the light of order dated 07.09.2016 passed by the learned Court below and she has proved the undertaking marked as Exhibit 2 which was given and signed by the petitioner on 31.03.2023. She has further proved the TC of Adiyi Jha i.e. 23 O.P.No. 2 issued by Bishop Westcott School, Doranda, Ranchi which were marked as Exhibit 3 to 3/C respectively. She futher proved her passbook issued by State Bank of India, C.M.P.D.I., Branch, Ranchi , marked as Exhibit “4”. She has further proved the Pay Roll sheet report of Reem Readmix Co. L.L.C., Company for the month of January, 2011 marked as Exhibit -5 but it is of June, 2011 and the name of the petitioner is found at serial No. 20. 30. Thus from the scrutinizing the evidence of P.W.3 i.e. the applicant No. 1 –O.P. No. 1, it is evident that she has fully supported her case and stated that she has been thoroughly neglected by the petitioner since 2013 in Ranchi without any reason. Although the petitioner has deposited Rs. four lakhs (4,00,000/- ) for the expenditure of the O.P. No. 1 and O.P. No. 2 for one year but since 2014 the petitioner had not paid any expenditure till the disposal of the maintenance case before the learned Principal Judge, Family Court. Even from her cross-examination, it is evident that she has fully supported her case and she has fully stood the test of cross-examination and her evidence is intact and firm on the point of negligence and not paying maintenance amount by the petitioner to the O.P. No. 1 and the O.P. No. 2 since the year 2014. 31. P.W. 4 is Jai Prakash Narayan Jha, which is father of the applicant No. 1-the O.P. No. 1 and stated that same facts as has been stated by P.W. 2 and as such the same is not being repeated here for the sake of the repetition . However he has further stated that his daughter and his natni required 20,000/- Dirham (i.e. Rs. 3,00,000/-) per month for their maintenance. He has proved the original pass-port of the applicants issued by the Government of India and which have been marked as Exhibit -01 , 1/A and 1/A2 respectively. During cross-examination he has stated that he has retired from CCL in the year 2001 and during that time 24 his salary was approx. Rs. 32,000/- per month . He further stated that he does not get pension but he is earning and making the expenses of his house by plying the Truck on rent from which he gets income of fooding and apart from this he has got ancestral properties and he has certain income. He further stated that he gets some time Rs. 10,000/- per month or Rs. 15,000/- per month from plying the Truck but there is no fixed income . He also gets rice, wheat , paddy from ancestral agriculture property and he is making proper expenditure for his house. He further stated that he has two daughters and both are married however his son and the applicant No. 1 and the applicant No. 2 lived with him and he spends Rs. 15,000/- per month to meet out the entire household of expenditure. He further stated that the applicant No.1 –the O.P. No.1 is not doing any work however, she has passed M.A in Geography. He further stated that his son –in –law is a Chartered Accountant and is working as C.A. in Reem Readmix Co. L.L.C., Company in Abudhabi . He has also asserted that he petitioner had made some film and is also working at T.V. serial at Bombay but he is not aware as to in which serial the petitioner was working and is also not aware on which Channel it is being telecasted on being question and answer form about the share of the applicant No. 1 in her ancestral share, P.W. 4 i.e the witness has replied that he is not aware and he is also not aware of relevant law. 32. From the scrutinizing the evidence of P.W. 4 i.e. father of the O.P. No. 1, it is evident that he has fully supported and corroborated the case of the petitioner . 33. So far as documentary evidence is concerned, Exhibit -1 is passport of Hema Jha i.e O.P. No. 1 which was valid for 16.12. 2003 to 15.12.2013. Exhibit 1/A is passport of Aditi Jha i.e. the O.P. No. 2 25 showing the grant of entry from 10.01.2010 to 09.01.2015 34. Exhibit 2 is an Undertaking given by the petitioner to the O.P. No. 1 on 31.03.2013 to maintain the wife and the daughter i.e. O.P. No. 1, O.P. No. 2 by paying Rs. 4, 00,000 (Rs. Four Lacs) per annum. 35. Exhibit 3 to 3/C are the receipt of fee etc. of Aditya Jha issued by Bishop Westcott School , Doranda , Ranchi . 36. Exhibit 4 is Joint pass book of the petitioner and the O.P. No. 1 with S.B.I., C.M.P.D.I, Branch , Ranchi . 37. Exhibit -5 is computer generated copy of Payroll of the petitioner for the month of June, 2011 which shows that the monthly salary June , 2011 and serial No. 20 reveals that monthly salary of the petitioner was 32,000/- Dirham per month which was withdrawn in June, 2011 and after deductions his net payable salary is 31, 783.00 Dirham per month. It has also on record that one dirham is equivalent to Rs. 15 (Fifteen). 38. From the perusal of Exhibit -2 it appears that the petitioner has given an Undertaking on 31.03.2013 to the effect that he alongwith his family members i.e. Hema Jha and Aditi Jha i.e. daughter were arriving to Ranchi and he is keeping his wife and daughter in the house of his Father –in-law ( Sri Jai Prakash Narayan Jha) for one year on his own expenses and also and in order to save money he is going to Abu Dhabi because he is paying loan and he has given undertaking that if the family stays in Ranchi for more than one year then he will again keep them sending for their expenditure so that they may remain secured and feel comfortable, however presently he has been depositing the amount for the expenditure of the one year for expenditure of the wife and his daughter in the joint account of the petitioner and the O.P. No.1. Though Exhibit -2 is marked with an objection but the petitioner has not challenged. 26 39. photocopy of the passport of the petitioner is marked as “X” for its identification. Photocopy / e-generated of copy of photograph of C.A. i.e. Ashok Kumar Jha marked as Exhibit X/1 in two (02) sheet for its identification. Photocopy of the photograph of Kranti Path picture is marked as X/2 for its identification. Photocopy of photograph of Ashok Kumar Jha i.e. the petitioner with photograph of Zainab Khan has been marked as X/3 for its identification. And photocopy of photograph Ashok Kumar Jha has been marked as X/4 for its identification. Although the photograph X/4 showing the petitioner with Jaina Khan has been marked for identification but it does display that he may be having extra marital affair . Although there are certain further photograph have been placed on record but it may not state the extra marital affair of the petitioner any other and same have not been marked as the exhibits or documents for identification and at best it may show to do acting in the film or the T.V. serial . 40. The petitioner has raised the grievance that the learned Court below has fixed the case ex-parte against him and hence closed the evidence of the petitioner in two dates only. 41. It transpires from the Lower Court Record, that the P.W. 1 was examined, cross-examined and discharged on 15.02.2016, and thereafter P.W. 2 was examined, cross-examined on 19.03.2016 and discharged on 2016 without cross-examination but said P.W. 2 again cross-examined on recall and discharged on 31.05.2016 and thereafter the O.P. No. 2 (i.e. wife) i.e. the P.W. 3 was examined, cross examined and discharged on 02.07.2016 and further P.W. 3 was again re-examined on recall and discharged on 27 08.09.2016 for getting certain documents marked as Exhibit 2 and Exhibit 3 , Exhibit -4 and Exhibit -5respectively. Thereafter P.W. 4 Jai Prakash Narayan Jha was examined, cross-examined and discharged on 16.07.2016 . 42. It transpires from the record thereafter the case was fixed for the evidence of O.P. i.e. the petitioner on 09.08.2016, however the learned Court below has observed that as the O.P. was directed to pay the dues of arrears of maintenance amount failing which his defence shall be struck off and D.W. may be issued against him and the case was fixed for evidence of the petitioner on 09.08.2016. However on 09.08.2016 , the petitioner was absent and as such the case was fixed for the evidence of the petitioner on 21.08.2016 ( O.P. in the learned Court below). 43. It further transpires that on 21.08.2016 (although due to typographical error that the date has shown as 30.08.2016 instead on 21.08.2016 in the order sheet), the petitioner had filed the Time Petition through his lawyer, however time petition was rejected by the learned Court below and the evidence of the O.P. – the petitioner was closed as the petitioner had not paid the interim maintenance amount and the maintenance case was posted for argument on 30.08.2016 . 44. Thereafter on 30.08.2016, a time petition was again filed on behalf of the O.P. –the petitioner and learned Principal Judge, Family Court has observed that due to non-receipt of Exhibit from the Coping Department, the O.P. has prayed for time and the learned Court below has fixed the next date for argument on 01.09.2016. Thereafter the case was fixed again on 07.09.2016 for argument , however on 07.09.2016 the learned Court below had again directed to examine the P.W. 3 on recall on 08.09.2016. Thereafter P.W. 3 was re-examined on recall and discharged and 28 thereafter argument was heard and case was posted on judgment on 16.09.2016. 45. However on 16.09.2016 the Judgment could not be delivered by the learned Principal Judge, Family Court due to some urgent work and case was posted on judgment on 22.09.2016 and the judgment was delivered on 22.09.2016 by the learned Court below. 46. Therefore it is evident that the learned Court had given two opportunity to the petitioner to adduce his evidence and directed to pay arrears of the interim maintenance amount vide order dated 09.08.2016 but the petitioner has failed to pay even arrears of the interim maintenance amount and as such the evidence of the O.P. was closed on 21.08.2016 although due to typographical error it has been written/typed as 30.08.2016 instead of 21.08.2016. However again the petitioner had not led any evidence on 09.08.2016 and 30.08.2016, although his father and his mother and other persons could have been examined on behalf of the petitioner and even the petitioner was not present. Although the Hazri and Time Petition of the O.P. (i.e.– the petitioner) has not been sent alongwith the Lower Court Record but still this Court is of the view that the learned Court below committed no illegality by closing the evidence of the petitioner due to disobeying the order passed by the learned Principal Judge, Family Court on 16.07.2016 and on 21.08.2016 respectively. 47. At this stage , it is relevant to mention here that the then learned Principal Judge, Family Court Ranchi vide order dated 17.03.2015 directed the petitioner to pay Rs. 10,000/- per month and Rs. 5,000/- per month ( total Rs. 15,000/- ) per month to the O.P. No. 1 and the O.P. No. 2 respectively and further directed to payment of Rs. 10,000/-as litigation costs by one lum-sum with the observation that the amount will be treated in Indian Rupees and 29 not in Dirham and the O.P. was directed to pay the interim maintenance by 10th day of every month positively, however the petitioner appears to have not paid the same. 48. Although the copy of the petition filed on 16.07.2016 by the applicant No. 1-O.P. No. 1 and applicant No. 2-O.P. No. 2 has not been brought on record , however order-sheet also reveals that on 17.09.2015 distance warrant was issued against the petitioner. 49. It also transpires from the order-sheet that the despite passing order on 17.03.2015, the petitioner had deposited Rs. 15,000/- on 01.07.2015, 27.11.2015 and Rs. 45,000/- on 30.05.2016 only, thus the petitioner is negligent and is apparently disobeying the order of interim maintenance passed on 17.03.2015 and hence no illegality was committed by the learned Court below by the closing the evidence of the petitioner on 21.08.2016. 50. Apart from this, even after closure of the evidence of the petitioner on 21/08/2016(due to typographical error that the date has shown as 30.08.2016 instead on 21.08.2016 in the order sheet) when the case was fixed on 30.08.2016 , 01.09.2016, 07.09.2016 and 08.09.2016 for argument and then also no effort was made on behalf of the petitioner to produce any evidence before the learned Court below i.e. the learned Principal Judge, Family Court, Ranchi and the petitioner ought to have produced some witnesses even if he was not present and his parents could have arrived or relatives or friend or any person could have to come to depose for their evidence and for giving evidence on behalf of the petitioner but he failed to do so. 51. Thus this Court finds no force in the submission of the learned counsel for the petitioner that proper opportunity was not given to the petitioner to adduce the evidence. 30 52. So far the question of the conversion of the petitioner on Hindu to Islam religion is concerned, the same cannot be looked into at this stage as this is a mixture question of facts and laws and the petitioner is claimed to have given divorce to the O.P. No. 1 on telephone on 15.01.2014 and which is not proved in absence of the evidence of the petitioner and also due to non-production of any document and which is also denied by the O.P. No. 1. 53. Although the petitioner has filed certain copy of photocopy of first divorce dated 17.03.2014 but the same cannot be looked into as it has not been marked in evidence as the same were not marked as exhibits, although they were filed before the learned Court below at the time of filing of the show cause and such in absence of any proper prove of those document, the plea of the petitioner converted into Islam to Hinduism and plea of divorce cannot be looked into and claim of the petitioner for giving divorce on 15.01.2014 is rejected and it has no consequence for the purpose of maintenance Case and this . The plea of divorce is also rejected by this Court. 54. It further transpires that the learned Court below has come to the conclusion that in the year 2011, the petitioner was getting 38,000/- Dirham per month i.e Rs. 5,70,000/- per month while he has working as Senior Finance Manager – Accountant in Abu Dhabi Company. However, from the perusal of document marked as Exhibit 5, it transpires that the monthly salary of the petitioner was 32,000/- Dirham which reveals from the computer generated /e-generated payroll of REEM READMIX , LLC for the month of June, 2011 and the name of this petitioner finds place at serial No. 20 and after deduction net salary of the petitioner is shown as 31,783/- Dirham per month and calculating 32,000/- Dirham by multiplying it by 15 will be Rs. 4,80,000/- instead of five lac seventy thousand at the rate of 38,000/- Dirham per month, 31 however it is a also fact that the maintenance case has been file in the year 2014. 55. The petitioner has filed the supplementary affidavit dated 16.02.2022 , stating there as that he is an unemployed and came back to India and started searching for job and has submitted the copy of I.T. return has marked as Annexure-A series and submitted that he is struggling to become an actor and is earning Rs.15,000/-20,000/- per month. However, no specific statement has been made with regard to the I.T. return The petitioner has enclosed photocopy of I.T. return which have been enclosed as Annexure A series on behalf of the petitioner in this Criminal Revision Application . 56. From perusal of the Annexure-A series, it appears that the petitioner has filed income tax return for the Assessment years 2015-2016, 2016-2017, 2018-2019 and 2019-2020 respectively which are in total seventeen (17) sheets showing in annual income as 1,22,000/-, 1,87,780/-, 2,43,600/- and 1,47,742/- respectively . Even in this Annexure-A series, the name of the petitioner has shown as Ashok Kumar Jha in all the Income Tax Return and his own name Ayman Khan has not been disclosed any where, thus it is also evident that the claim of the petitioner for converting into Muslim – Islam is not found rather he is still showing his identity in Hindu name of ‘Ashok Kumar Jha’. However the petitioner has not field I.T. Return to Assessment year 2011-2012, 2012-2013 and 2013-2014 respectively. 57.