Abhishek Ranjan, aged about 45 years, son of Late Chandra Bhushan Sahay, Resident of v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1270 of 2023 Abhishek Ranjan, aged about 45 years, son of Late Chandra Bhushan Sahay, Resident of Qr. No. F/13 Kusai Colony, P.O. and P.S.- Doranda, District-Ranchi, Jharkhand, at present resident of C/o Mala Sahay, D3/2E, Sail City, Sector 2, P.O. Sail City, P.S. Dhurwa, District-Ranchi, Jharkhand 1. The State of Jharkhand 2. Ranjeeta Kumari @ Rimjhim, aged about 43 years, W/o Versus … … Petitioner Abhishek Ranjan, D/o Gopalji Prasad 3. Aisarya @ Rishav, aged about 10 years, S/o Abhishek Ranjan (minor represented through his mother as natural gurardian i.e. Opposite Party No. 2) Both R/o at present Prasad Niwas, G.N. Ganj Gudri Bazar, P.O. Laheria Sarai, District-Darbhanga, (resident of Road No. 4, Krishnapuri, P.O. and P.S. Chutia, District Ranchi, Jharkhand) Opp. Parties …
Legal Reasoning
--- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. Mukesh Kumar Sinha, Advocate : Mr. Bishambhar Shastri, APP : Mr. Saibal Mitra, Advocate : Mr. Akshay Kumar Mahto, Advocate For the Petitioner For the State For the O.P. No. 2 --- 15/13.08.2024 Heard the learned counsel for the parties. 2. This criminal revision has been filed against the order dated 27.07.2023 passed by the learned Additional Principal Judge, Additional Family Court-I, Ranchi in Original Maintenance Case No. 2 of 2019 whereby the learned court has fixed the maintenance of Rs. 10,000/-per month to the opposite party No. 2 (divorced wife of the petitioner) and Rs. 7,000 per month to the son. The learned court has also awarded Rs. 5,000/- as litigation cost to the opposite party No. 2. 3. During the course of argument, the marriage between the parties is not in dispute. The marriage was solemnized in the year 2012 and in the year 2013, a child was borne out of the wedlock and the wife has been living separately since 2013. In the year 2016 the petitioner filed a Original Suit (M.T.S.) No. 130 of 2016 seeking divorce and the divorce was decreed ex-parte on 17.08.2016. In the year 2017, the petitioner solemnized second marriage and another son has also been borne out of the second marriage. However against the decree of divorce, the opposite party No. 2 had filed First Appeal being First Appeal No. 263 of 2018 before this Court but the same was disposed with a liberty to file a petition under Order 9 Rule 13 of CPC. Consequently, opposite party no. 2 has filed Civil Misc. Case No. 13 of 2019 before the concerned court which is said to be pending. Thereafter the opposite party No. 2 has also filed the petition seeking maintenance on 02.01.2019 being Original Maintenance Case No. 2 of 2019. 4. The learned counsel for the petitioner while assailing the impugned order has submitted that he has nothing to say so far as the maintenance to the son is concerned. However, so far as maintenance to the wife is concerned, the same has been wrongly granted. He submits that one of the grounds for divorce was desertion and the divorce was decreed in favour of the petitioner. The same has not yet been set aside though it was an ex-parte divorce decree. He submits that once there is a finding that the opposite party No. 2 has deserted the petitioner, the provision of Section 125(4) comes into play and therefore the impugned order of maintenance to the wife is not sustainable in the eyes of law. He submits that this issue should have been framed and ought to have been adjudicated by the learned Family Court. 5. The learned counsel appearing on behalf of the opposite party no. 2 has submitted that as per the provisions of Section 125 of the Cr. P.C. even a divorced wife is entitled for maintenance. He submits that the petitioner has already undertaken second marriage and there is no question of living together as the marriage as on date does not subsist by virtue of the decree of divorce which is yet to be set aside. The learned counsel has also submitted that no permanent alimony as such has been fixed in the decree of divorce. However, the decree for divorce is subject matter of CMP No. 13 of 2 2019 which is a petition filed under Order 9 Rule 13 of CPC. He has relied upon a judgment passed by the Hon’ble Supreme Court reported in (2000) 3 SCC 180 (Rohtash Singh v. Ramendri) paragraph 6,7 and 10. 6. No other arguments have been advanced by the learned counsel for the parties. 7. After hearing the learned counsel for the parties, this court finds that the application seeking maintenance was filed by the opposite party No. 2 after the ex-parte divorce decree was granted. This court also finds that the applicant was examined as A.W. 1 and she alleged that the petitioner had forcibly taken her to village where she was assaulted and thereafter, she was forcibly sent to her parents' house and had stated while leaving her that he would divorce her and therefore she was living in her parental house. This court finds that the applicant was cross examined wherein she had stated that the petitioner has already conducted second marriage and had a son out of second marriage and that the divorce decree was passed ex-parte on 17.08.2016. She has also stated in paragraph 16 that the petitioner had sent money order to her three time for an amount of Rs. 5,000/- each time, but she has refused to accept the same as the same was given by stating that the petitioner was giving the value of his wife. This court finds that admittedly the parties did not file any petition for restitution of conjugal rights. This Court finds that the petition seeking maintenance was filed after the divorce decree and the divorce decree has not yet been set aside. Section 125 also provides that even the divorced wife is entitled for maintenance. Admittedly no permanent alimony has been fixed. Section 125 Cr. P.C. clearly provides that if the divorced wife is unable to maintain herself and if she is not married, she will be entitled for maintenance. In a case of divorced woman claiming maintenance, the provisions of Section 125(4) is not applicable. Paragraph 6,7 and 10 of the judgement relied upon by the opposite party No. 2 reported in (2000) 3 SCC 180 is quoted as under: 3 “6. Under this provision, a wife is not entitled to any maintenance allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of Section 125 CrPC presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim maintenance allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim maintenance allowance under Section 125 of the Code of Criminal Procedure. 7. The second ground on which she would not be entitled to maintenance allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of individual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim maintenance allowance under Section 125 CrPC and how far can the plea of desertion be treated 4 the is based on to be an effective plea in support of the husband's refusal to pay her the maintenance allowance. 10. Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife foundation provided by Explanation (b) to sub-section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi [1983 Cri LJ 36 (Cal)].) The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.” 8. This court is of the considered view that the very application seeking maintenance was filed after divorce and therefore the plea that the opposite party No. 2 had deserted the petitioner cannot be a reason for refusal of maintenance to the opposite party. So far as maintenance to the son is concerned, admittedly there is no challenge to that aspect. No further argument has been advanced. 9. Considering the submissions made and the findings recorded and upon going through the impugned order, this court finds that
Decision
the impugned judgment is a well-reasoned judgment and no ground for interference in revisional jurisdiction has been made out. Accordingly, this petition is hereby dismissed. 10. 11. Let this order be communicated to the court concerned Pending I.A., if any, is closed. through FAX. Binit 5 (Anubha Rawat Choudhary, J.)