Tumpa Devi … v. 1.The State of Jharkhand 2.Mukesh Mandal
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1324 of 2018 Tumpa Devi …… Petitioner Versus 1.The State of Jharkhand 2.Mukesh Mandal --------- ……. Opp. Parties CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State For the O.P. No.2 ---------- : Ms. Kehkashan Afsheen, Adv. : Mr. Anup Pawan Toppo, APP : None --------- Oral Order in Court 09/Dated:22nd January, 2024 This Criminal Revision Application has been filed on behalf of the petitioner challenging the judgment dated 13.06.2018 passed in Original Maintenance No.108 of 2016 by Sri Deepak Nath Tiwari, the learned Principal Judge, Family Court, Sahibganj, Camp at Rajmahal by which the learned Principal Judge has rejected the claim for maintenance allowance of the petitioner. 2. The case of the petitioner (i.e. wife), in brief, is that her marriage was solemnized with the Opposite Party- Husband on 03.06.2013 as per Hindu customs at her parental home Jairamdaga and at the time of her marriage, her father had given cash amount of Rs.1,05,000/-, 08 Aana Gold jewellery, 20 Bhar Silver Payal and 02 Bhar Silver Chain and household articles. Thereafter she along with her husband came to her matrimonial home where she was kept properly for around one month and at the time of Bidai her mother in- law and father in-law taunted her for giving Black girl and for not paying Rs.1,55,000/- cash and started pressure for 2 remaining Rs.50,000/-. Thereafter she was tortured physically and mentally and they started assaulting her. When her father came to take her Bidai then she was not taken on Bidai and thereafter her mother in-law started mixing something in her food, due to which her health became deteriorated and she fell sick. On hearing the news of her illness her father along with his elder Uncle, Jijaji and Fufa came to her matrimonial home on 20.06.2014 and took her in Bidai from her Sasural and at that time her mother in-law forcibly snatched her jewellery and thereafter she came to her Maike with her father. It is also stated that in December, 2014 her husband i.e. opposite party no.2 and her father in-law came to her parental home and demanded Rs.50,000/- from her father and which could not be fulfilled by her father then they left away them taking the petitioner in Bidai and threatened them until and unless they paid Rs.50,000/- they will not took the petitioner in Bidai. Even on the occasion of Maghi Purnima on 02.02.2015 and also on occasion of Holi, her husband, father in-law and mother in-law had demanded Rs.50,000/- from her father and threatened to perform second marriage of her husband and left her to her parental home and since then she is dependent upon her father. Thereafter she instituted Rajmahal P.S. Case No.10 of 2016, G.R. No.22 of 2016 against her husband, father in- law and mother in-law which is pending in the court of S.D.J.M, Rajmahal. However, in the said case the opposite party was sent to jail and during that period there was talk of compromise between both the sides and she was also willing to go to her matrimonial home and in the meantime, the O.P. No.2-Husband was released on bail then her husband O.P. No.2, father in-law refused to enter into any compromise 3 hence she has filed the present case. It has been stated that opposite party is a skilled labour and works as a regular labourer in Crusher and is only son of his father and has got landed property from which he is earning Rs.12,000/- per month from all sources and also grows cereals for the whole year and she may be granted Rs.10,000/- per month as maintenance. 3. The case of the O.P. No.2-husabnd, in brief, is that the case filed under Section 125 Cr.P.C. is not maintainable. He admitted the marriage with the petitioner and stated that after marriage the petitioner (i.e. wife) remained in matrimonial home for around one year. During this period she used to say that she does not like the opposite party and she will not live there rather she will marry at some other place. In the meantime, the applicant became pregnant and she fled away to the house of her father on 01.05.2014 in absence of opposite party after taking her jewellery and cash. Thereafter the opposite party went several time to the house of applicant to take her in Bidai but they refused to send her by stating that the applicant will not live in the house of opposite party and they demanded Rs.2,50,000/- for living her and had assaulted the opposite party. It is also stated that applicant-petitioner got aborted pregnancy of the child of opposite party without consent of the opposite party and when the opposite party enquired in her sasural then applicant stated that she will not live in the house of her husband. The applicant has also instituted a false case of dowry torture against him and his family members. Even the opposite party stated before the Court below that he is ready to keep the applicant but applicant is not ready to live with him. It is also stated that 4 opposite party is a poor and labour and is suffering disease of T.B and he is unable to do his routine work in absence of the applicant and he has got no source of income. He also stated that he is still ready to keep the applicant with full honour and dignity. It is also stated that applicant is not entitled to maintenance as she is not ready to live with him. 4. Heard learned counsel for the petitioner and learned APP for the State. However, none appears on behalf of the O.P. No.2 on repeated call. 5. It appears that although notice was issued upon the O.P. No.2 vide order dated 19.11.2018 by a Co-ordinate Bench of this Court and even one Gautam Kumar, learned counsel had appeared on behalf of the O.P. No.2 by filing Vakalatnama but none appeared on 22.03.2022 when the case
Legal Reasoning
was called out. Even on 23.06.2023 one Ms. Satya Satakchi, learned counsel under the instruction of Gautam Kumar submitted that they are not in touch with the O.P. No.2 and hence notice was issued upon the O.P. No.2 by Speed Post but still the O.P. No.2 did not appear and hence the judgment was reserved. 6. Learned counsel for the petitioner submitted that the impugned judgment dated 13.06.2018 passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. It is submitted that learned Court below has failed to consider that the petitioner is a rustic lady and she is unable to maintain herself. It is submitted that learned Court below has failed to consider that the O.P. No.2 had admitted that the petitioner is his wife and the husband cannot flee from his liability to maintain his wife. It is submitted that the learned Court below has failed to consider that the petitioner has not 5 permanent source of income. It is submitted that the petitioner has examined herself in evidence and she has fully supported her case. It is submitted that the O.P. No.2 has examined two witnesses namely Mukesh Mandal as O.P. W-1 and Nandlal Mandal and O.P.W-2, however their evidence are not reliable. It is submitted that petitioner is a poor lady and finding of the learned Court below is not correct that petitioner is not willing to live with the opposite party and hence the impugned judgment may be set aside and maintenance amount of Rs.5,000/- may be allowed. 7. On the other hand, learned APP has submitted that the impugned judgment passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that petitioner is not deliberately living with the O.P. No.2 and hence the learned Court below has dismissed the maintenance case. It is submitted that the evidence of A.W-1-Tumpa Devi is not reliable. It submitted that the learned Court below has rightly believed the evidence of O.P.W-1 and O.P.W-2 namely Mukesh Mandal and Nandlal Mandal. It is submitted that the petitioner was pregnant and she terminated her pregnancy without consent of the O.P No.2 and left matrimonial home on her own and hence she is not entitled to maintenance. It is submitted that petitioner does not like the O.P. No.2 which reflects from the judgment of the learned Court below. It is submitted that petitioner has admitted during her cross-examination that she will never go to her matrimonial home at any condition and further stated that she does not want to live her conjugal life with her husband because the matrimonial house is made of straw and her in-laws are beggar. Thus, the petitioner is not entitled to 6 maintenance hence this Criminal Revision Application may be dismissed. 8. Perused the Lower Court Records and considered the submission of learned counsel for the petitioner and learned APP for the State. 9. It appears that the marriage between the petitioner and O.P. No.2 was solemnized on 03.06.2013 and both the parties (i.e. the petitioner-wife and O.P. No.2-husband) lived together for around one year. Thereafter the Original Maintenance No.108 of 2016 was filed by the petitioner on27.05.2016/28.05.2016 and then notice was issued upon the opposite party. 10. It appears that O.P. No.2 had appeared before the Court below on 06.10.2016 and filed show cause on 15.06.2017. Thereafter the case was fixed for evidence. 11. The petitioner in support of her case got examined herself as P.W-1-Tumpa Devi. 12. The petitioner in support of her case, got proved the following document as Exhibit, which is as follows: (i) Exhibit-1 is the certified copy of the FIR of G.R No.22/2016. 13. The O.P. No.2 in support of his case, got examined two witnesses, who are as follows: (i) O.P.W-1 is Mukesh Mandal and (ii) O.P.W-2 is Nandlal Mandal i.e. the father of the opposite party. 14. Thereafter the learned Court below has passed the impugned judgment hence the appreciation of evidence of both the sides is necessary. 15. P.W-1 is Tumpa Devi i.e. the petitioner and who stated during her evidence on an affidavit that she was 7 married with the opposite party on 03.06.2013 as per Hindu customs at her parental home Jairamdaga and at the time of her marriage her father had given cash amount of Rs.1,05,000/-, 08 Aana Gold jewellery, 20 Bhar Silver Payal and 02 Bhar Silver Chain and household articles. Thereafter she along with her husband came to her matrimonial home where she was kept properly for around one month and at the time of Bidai her mother in-law and father in-law taunted her for giving Black girl and for not paying Rs.1,55,000/- cash and started pressure for remaining Rs.50,000/-. Thereafter she was tortured physically and mentally and they started assaulting her. When her father came to take her Bidai then she was not taken on Bidai and thereafter her mother in-law started mixing something in her food, due to which her health became deteriorated and she fell sick. On hearing the news of her illness her father along with his elder Uncle, Jijaji and Fufa came to her matrimonial home on 20.06.2014 and took her in Bidai from her Sasural and at that time her mother in- law forcibly snatched her jewellery and thereafter she came to her Maike with her father. It is also stated that in December, 2014 her husband i.e. opposite party no.2 and her father in- law came to her parental home and demanded Rs.50,000/- from her father and which could not be fulfilled by her father then they left away them taking the petitioner in Bidai and threatened them until and unless they paid Rs.50,000/- they will not took the petitioner in Bidai. Even on the occasion of Maghi Purnima on 02.02.2015 and also on occasion of Holi, her husband, father in-law and mother in-law demanded Rs.50,000/- from her father and threatened to perform second marriage of her husband and left her to her parental home and 8 since then she is dependent upon her father. Thereafter she instituted Rajmahal P.S. Case No.10 of 2016, G.R. No.22 of 2016 against her husband, father in-law and mother in-law which is pending in the court of S.D.J.M, Rajmahal. However, in the said case the opposite party was sent to jail and during that period there was talk of compromise between both the sides and she was also willing to go to her matrimonial home and in the meantime, the O.P. No.2- Husband was released on bail then her husband O.P. No.2, father in-law refused to enter into any compromise hence she has filed the present case. It has been stated that opposite party is a skilled labour and works as a regular labourer in Crusher and is only son of his father and has got landed property from which he is earning Rs.12,000/- per month from all sources and also grows cereals for the whole year and she may be granted Rs.5,000/- per month as maintenance. 16. During cross-examination, she stated that she remained in her matrimonial home happily with her husband for around 1-2 months and total she lived in her matrimonial home from marriage till date to the extent of 5-6 months. She admitted to be pregnant in the year 2014 when she came to her Maike from matrimonial home in Baisakh. However, when she arrived at her parental home then her husband never took him for Bidai. 17. She further stated and asserted that even if her husband is ready to take in Bidai from the Court then also she will not accompanying with her husband in any condition and she does not want to live further conjugal relationship with her husband. She stated for showing the entire occurrence of case instituted under Section 498A IPC. She is not aware as to 9 whether her husband is mentally and physically sound or not, but she is mentally and physically sound. However, her husband is only son of his parents. She further stated that she is not aware of the land of her father in-law or husband but the house of her father in-law is made of ‘Pual’ (i.e. straw) and has committed upon their status but stated that he is doing job but not doing Government job. She has asserted for not filing this case for taking divorce from her husband and for taking back dowry articles. She had also not instituted this case for living with her husband. She had not appeared in any Court when her husband had filed case for grant of bail. She denied the suggestion for not liking her husband but again stated to not accompanying with her husband. She denied the suggestion for aborting her pregnancy as she does not want to live with her husband-Mukesh. 18. Thus, scrutinizing from the evidence of P.W-1, it would appear that she was tortured by the opposite party and her in-law members for non-fulfilment of remaining amount of Rs.50,000/- towards dowry and for torturing her and she has not stated about anything about her pregnancy either in her maintenance petition during her evidence by filing an affidavit. However, during cross-examination, she admitted in Para-14 of her evidence that she was pregnant in the month of Baisakh in the year 2014 when she returned to Maike from her matrimonial home. She has shown her unwillingness to go to her matrimonial home as she was disturbed by the behaviour of her husband and her in-law members. 19. O.P.W-1 is Mukesh Mandal, who is the husband of the petitioner and he had also filed affidavit stating therein that he was married with the petitioner in the year 2013 but 10 after marriage she does not like him and she was not desirous to live in his house and wanted to marry to some other place and during this period when she became pregnant then she left for her Naihar in his absence on 31.05.2014 by taking her jewellery and cash. Thereafter she went to the house of the father of the applicant-petitioner for Bidai several times but they refused Bidai and demanded his 2.50 Lakh to leave her and they assaulted him and had not allowed him to enter into his house. He further stated that the petitioner aborted her pregnancy without his consent as she wanted to marry at some other place. Thereafter the applicant instituted false case of dowry torture against him and even in the said case, he had prayed before the learned Court below that he is willing to keep the applicant with honour but even the applicant- petitioner stated before the Court below that she will not live her conjugal life with this opposite party and even during her evidence she has refused to live with him. He further stated that he is a poor labour and has no landed property and he is suffering from T.B disease. He is even unable to do his daily works in absence of the applicant-petitioner and he is not going for labour work and he has no source of income. He further stated that he is still ready to keep the applicant by giving Undertaking in the Court to keep the applicant- petitioner with full honour and dignity and since applicant is not willing to live conjugal life with him without any reasonable cause and hence the applicant-petitioner is not entitled to receive maintenance from him. The applicant- petitioner has filed this case only to harass and torture him and to lower his prestige in the society. The applicant- petitioner can marry somewhere after giving him divorce as 11 she does not like him. 20. During cross-examination, he admitted his marriage with the petitioner in the year 2013 but could not say the date and admitted that the petitioner Tumpa remained with him for around one year like wife till 2014 and thereafter she is living in her Maike. He admitted that his wife has instituted G.R. Case No.22/2016 against him and his father and mother for dowry and torture. He denied the suggestion for demanding Rs.50,000/- form the petitioner and for ousting her for non- payment of the same. He denied the suggestion for demanding Rs.50,000/- from the applicant on the eve of Maghi Purnima on 02.02.2015 during time of Ganga Bath and asserted that they had gone for Bidai to the house of his wife but they had not given his wife in Bidai. He stated that his wife had taken household articles from his house for which he submitted a report in the Court. He denied the suggestion that his wife suffered pregnancy due to torture given by them. He denied the suggestion that his father had instituted Complaint Case No.83 of 2016 against one Mihir Saha, Vipat Saha and Nirmal Saha (father of the petitioner). He denied for working in crusher and stated that he is suffering from T.B. He denied for earning Rs.12,000/- per month as labour in crusher work. He stated that his father sells ‘Murhi’ and they have got no landed properly. He denied the landed property of his father. He admits that her mother prepares Murhi. However, he does not sell Murhi and sometime to labour work. He has passed VIIth Class only. He, his father and mother still wants to keep the applicant but the applicant is not living with them for last four years and she is living in her Maike. He admitted for getting Mazdoori of 12 Rs.150/- and denied for getting Rs.300/- per day in labour work. He can file paper in the court regarding his treatment. On being confronted in question-answer form, he again shown willingness for keeping his wife. 21. Thus, from the evidence of D.W-1-Mukesh Mandal (i.e. O.P. No.2), it is evident that applicant-petitioner is a rustic lady and he is still ready to keep his wife. Although he has not given any specific date/month and year for taking the applicant for Bidai to her Maike. 22. D.W-2 is Nand Lal Mandal, who is father of the applicant and has supported the case of the opposite party by stating the same fact as stated by D.W-1. He stated that the petitioner was pregnant on 31.05.2014 when she went from her matrimonial home to her Maike. Thereafter she got aborted her pregnancy and demanded divorce from her husband and also demanded money for giving her divorce which could not be fulfilled by his son. He also stated that applicant-petitioner has instituted false case of dowry upon entire his family members and even she appeared in the Court and stated that she will not lead conjugal life with the opposite party. He further stated that his son is suffering from T.B and after marriage, she got separated from him and after separation he was feeling difficulty in his daily work and is not doing labour work and they have got no agricultural work. He further stated that his son i.e. O.P. No.2 is still ready to keep the applicant with full honour and dignity by taking Bidai from the Court but the applicant had refused to live conjugal life with his son without any reasonable cause and is putting pressure upon him for giving money for marrying at some other place and hence she is not entitled to maintenance. 13 23. During cross-examination, he admitted that he has got only one son and three daughters and his three daughters are married and are living in her matrimonial home. The applicant-petitioner remained in her matrimonial home for around six months after marriage and she remained in his house for around one year and since then she is living in her parental home. He was present on 31.05.2015 when the applicant had gone with all her articles and for which he had instituted a report in S.D.O., Court, Pakur and he can file report of the said case and he had made Tumpa Devi, her father Nirmal Saha and her uncle Bibhal/Bikat Saha as accused. He denied the suggestion for ousting the applicant due to non-fulfillment of dowry demand of Rs.50,000/-. He denied the suggestion for demanding dowry from applicant on the occasion of Maghi Purnima during Ganga Bath and for not taking her Bidai. He denied the suggestion that applicant does not want to live in her matrimonial home due to assault made by them due to fear. He can file paper of illness of T.B ailment of his son in the Court but admitted that he was treated by private doctor and also in Government Hospital but he cannot say the date of treatment for the present. He admitted that the applicant has got no source of livelihood and she is dependent upon her father. He denied the suggestion that his son is a temporary labour and is earning Rs.300/ to Rs.400/- per day. Thus, from scrutinizing the evidence of D.W-2, it is would appear that he supported the case of opposite party. 24. In the present case, it would appear that the Court below was swayed by the fact that the applicant-petitioner 14 does not want to live with her husband i.e. the O.P. No.2 and she got aborted her pregnancy and she had concealed this fact from the learned Court below. 25. This Court is of the view that merely termination of pregnancy is no ground for denying the maintenance. It is evident that till date the applicant-petitioner has not married anywhere but she is not willing to live with her husband and in-law members due to some fear shown in her mind and she has clearly stated during her evidence which is the fact of the incident as written in the FIR. 26. From perusal of the FIR, it would appear (marked as Exhibit-1) that she was frightened by the act of her in-law members as it reveals from the FIR that the mother in-law used to mix some material in her food due to which her health deteriorated and she was uncomfortable and even her Bidai was refused till 20.04.2014 and she was tortured for non- fulfillment of demand of dowry of Rs.50,000/-. 27. It transpires that even the O.P. No.2 has claimed that he along with his father and others had gone to the house of the petitioner on 02.02.2015 on the eve of Maghi Purnima during Ganga Bath. 28. Although, the O.P. No.2 stated that he had gone for Bidai several times in the house of the petitioner but he failed to give any specific date, month and year for taking her i.e. the applicant for Bidai. It would appear from the conduct of the petitioner that she is not willing to reside with the O.P. No.2 due to fear and merely on this ground the maintenance of the petitioner-wife cannot be rejected, if she has reasonable apprehension of fear of her life. 29. Under the circumstances, the judgment dated 15 13.06.2018 passed in Original Maintenance No.108 of 2016 by Sri Deepak Nath Tiwari, the learned Principal Judge, Family Court, Sahibganj, Camp at Rajmahal is set aside and the matter is remitted before the learned Court below to decide the matter afresh in accordance with law within six weeks from the date of receipt of copy of the order. 30. Thus, this Criminal Revision No.1324 of 2018 is allowed and stands disposed of with the observation mentioned above. (Sanjay Prasad, J.) Saket/ N.A.F.R