Prem Soren S/o Sri Dukhiya Soren, aged about 43 years, residents of Village & v. 1. The State of Jharkhand 2. Basanti Kumari Mardi 2nd W/o Sri Prem Soren
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1368 of 2023 Prem Soren S/o Sri Dukhiya Soren, aged about 43 years, residents of Village & Post – Jumal, P.S. – Rajnagar, District – Seraikella- Kharsawan Petitioner … … Versus 1. The State of Jharkhand 2. Basanti Kumari Mardi 2nd W/o Sri Prem Soren, D/o Ram Chandra Mardi, residents of Dimna Basti, P.O. – M.G.M. P.S. – Ulidih (Mango), District – East Singhbhum at Jamshedpur. … … Opposite Parties --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Parties --- : Mr. Jitesh Kumar, Advocate : Mr. J.N. Upadhyay, Advocate --- 10/13.06.2024 Learned counsels for the parties are present. 2. This criminal revision has been filed challenging the judgment dated 20.07.2023, wherein maintenance to the extent of Rs.20,000/- per month has been awarded in favour of the opposite party no.2 from the date of application and the petitioner has also been directed to clear the arrears in 36 installments starting from September, 2023, else the amount has been directed to be recovered through the process of court. 3. The learned counsel for the petitioner has submitted that the impugned judgment is perverse inasmuch as the specific case of the petitioner was that the applicant was his 2nd wife and she was living in adultery. He has also submitted that another petition seeking maintenance by the 1st wife was also pending before the same court for the last four years. 4. The learned counsel has further submitted that the petitioner had filed his affidavits regarding his assets and liabilities in terms of the judgment passed by the Hon’ble Supreme Court in the case of Rajnesh v. Neha reported in (2021) 2 SCC 324 and had also disclosed that the petitioner is an employee in the Ministry of Home Affairs, Union of India and had also filed one pay slip stating his basic pay as
Legal Reasoning
Rs.55,200/-. The learned counsel has submitted that no such affidavit was filed in terms of the aforesaid judgment by the opposite party before the learned court. 5. However, during the course of hearing, upon a specific query made by this Court, the learned counsel for the petitioner has submitted that it was never the case of the petitioner that the opposite party no.2 has any independent source of income. 6. The learned counsel appearing on behalf of the opposite party no.2 has opposed the prayer and has submitted that the impugned judgment is a well-reasoned judgment and the petitioner never appeared for his cross-examination. He has also submitted that even the interim maintenance amount was never paid by the petitioner. The learned counsel submits that the petitioner is in government employment, and the opposite party no.2 has no source of income; therefore, maintenance of Rs.20,000/- is just and proper. 7. So far as the allegation regarding 2nd marriage and also adultery by the Opposite Party No. 2 is concerned, it is submitted that it was for the petitioner to lead evidence to that effect, but the petitioner neither led any evidence nor he appeared for his cross-examination, and the entire evidence of the Opposite Party No. 2 remained intact. He has also submitted that there is no explanation on the part of the petitioner for not having offered himself for cross-examination. 8. In response, the learned counsel for the petitioner has also submitted that the parties are governed by tribal laws applicable to the Scheduled Tribe community of Santhal and 2nd marriage is permissible as per the tribal laws, but the opposite party no. 2 is not entitled for maintenance under the facts and circumstances of this case. 9. After hearing the learned counsel for the parties and considering the facts and circumstances of the case and on perusal of the impugned order, it is apparent that the specific case of the applicant was that she was the legally married wife of the petitioner and both belonged to Scheduled Tribe. 10. The petition seeking maintenance was filed on 06.04.2021 by the applicant claiming that she is the legally wedded wife of the 2 petitioner, both belong to scheduled tribe community and their marriage was solemnized on 27.05.2018. The petitioner is working at Delhi in the Ministry of Defence, Government of India, as a Section Officer. It is alleged that after two days of marriage, the petitioner took the applicant to Delhi and a few days thereafter, he started quarreling with the applicant and wanted her to bring money from her parents and when she expressed her unwillingness, he used to assault her and sometime used to call her 'witch', and the applicant suffered all torture inflicted upon her. However, she became pregnant in the month of October 2018, and after about one month, the petitioner brought her back to her parents' place and left for Delhi. In the month of December, the petitioner came and took her to his native village, and he used to drink alcohol regularly and inflicted cruelty upon the applicant by abusing and beating her, and the in-laws of the petitioner also tortured and abused her. She was also not provided proper food and was totally neglected. On 30.12.2019, the petitioner took her to Delhi and asked her to abort the baby, and ultimately the petitioner had beaten her up mercilessly. She was also forcibly made to abort her child in the month of January, 2020. It was the case of the applicant that the petitioner had deserted her totally, and the applicant had suffered hardship at the hand of the petitioner. She pleaded that the petitioner was having a salary of more than Rs.80,000/- per month, being in the post of Section Officer, Ministry of Defence, Government of India, and that she had no source of income. She prayed for maintenance to the extent of Rs.30,000/- per month. It was also pleaded that the petitioner also has landed property and has no other liability, and that he has been spending huge amount for his luxury and alcohol. The petitioner had appeared before the court and had denied the claim of the applicant on the ground that she was not entitled for maintenance and that she was living in adultery. 11. In order to substantiate and prove her case, the applicant examined herself as PW1, while her brother testified as PW2. Additionally, two other evidences were led that of Mamata Devi as PW3 and father of the applicant, Ram Chandra Mardi as PW4. To 3 oppose the case of the applicant, the petitioner examined himself on 19.12.2022, but only partly. At his request, his further examination-in- chief was deferred. However, thereafter, he neither turned up for rest of the examination-in-chief nor for cross-examination. 12. The learned court considered the evidences on record, and recorded the findings in paragraph no.9 and considered the examination and cross-examination of the witnesses from the side of the applicant and recorded the findings in paragraph no.10 as under: “10. Now on careful scrutiny, appreciation & marshaling of the evidence of the applicant Basanti Kumari Mardi and her other three Witnesses and only W.S. of the O.P. as the part examination of the O.P. has no evidentiary value as he did not make himself available for cross-examination by the applicant side, which was the right of the applicant and which has caused prejudice to her as already stated above, it clearly appears that it is an admitted position that the applicant is the legally wedded wife of the O.P. Prem Soren. And further from the evidence of the applicant side it is clear that only two days after the marriage the O.P. took her to Delhi where he was working in Ministry of Defence but only after few days he started quarreling with her and asked money from her parents and when she expressed her unwillingness, she was abused and assaulted by the O.P. and she tolerated all the tortures with the hope that his behavior would change. And in the mean time she got pregnant and during her stage of pregnancy the O.P. took her to his native village and he used to inflict cruelty upon her after taking liquor and she was totally neglected and did not provide her with food and he even did not listen to the request of her mother and kept on torturing the applicant. And further he also pressurized her to go for abortion and when she refused she was threatened that she will be killed and finally she was taken to a nursing home in Chaibasa on 27.01.2020 and got her pregnancy terminated forcible. And after two days she was brought to her parental house and she was left there and he went away on 29.01.2020 and since then he has completely neglected the applicant and is not maintaining her and she is completely dependent on her parents and thereafter he never came to take back his wife, so he is neither taking his wife nor maintaining her. And since 29.01.2020 the applicant is suffering from hardship for food, clothing and other amenities as O.P. has neglected her and he is not maintaining her although he is drawing salary of Rs.80,000/- salary per month by working as Section Officer in Ministry of Defence. So she has been forced to live at her parental home as she has no other option, so she is staying at her parental house not by choice but by compulsion. So she has reasonable excuse to live at her parental place & claim maintenance allowance from her husband as her life was in danger at her matrimonial home & there was apprehension of injuries as she was assaulted & tortured & has been forced to live at her parental home and inspite of the torture she was staying there bearing all the tortures. And further as per the evidence of the applicant side the applicant is neither working nor she has any source of income and she is completely dependent upon her parents for her maintenance, although her husband O.P is getting salary of Rs.80,000/- P.M as he is working in Ministry of defence but he is not maintaining her although he is capable of maintaining her. And as stated above she 4 has been forced to stay at her parental place and her parents are maintaining the applicant. But the O.P who has sufficient income and is capable of maintaining his wife has deliberately neglected the applicant & he is not maintaining her. And the applicant has no independent source of income and she is completely dependent on her parents for maintenance. And even the cross-examination of the applicant and her other three witnesses also could not impeach their testimonies and could not bring anything in favour of the O.P and even the O.P also could not bring any evidence to rebut & falsify the claim of the applicant and the evidence of the applicant side supporting the claim. So the evidence of the applicant and her other three witnesses remained unimpeached, credible, trustworthy, intact and inspires confidence. And as the O.P; is the husband of the applicant, so he is legally as well as morally bound to maintain his wife as the applicant has no income of her own to maintain herself & is dependent on her parents. So the applicant Basanti Kumari Mardi is very much entitled for maintenance allowance from her husband O.P. Prem Soren U/s 125 Cr.P.C.” 13. With regard to the quantum of maintenance, the findings have been recorded in paragraph no.11 which is quoted as under: “11………………………………………. So from the evidence of the applicant side it is established that the O.P. has a monthly income of Rs.80,000/- as salary as he is working in Ministry of Defence. And the said claim & fact of income of the O.P & the evidence of A.W. – 1 (applicant) and her other three witnesses could not be controverted & rebutted by the O.P by bringing any evidence on his part or through the cross-examination of the applicant & her other witnesses. And the Hon’ble Supreme Court in the case of Amarjeet Kaur Vs. Harbhajan Singh and another (2013) 10 SCC 228 has held that relevant consideration for grant of maintenance pendente-lite is that the spouse seeking maintenance should not have any independent income sufficient for her/his support. Once court reaches its conclusion in that regard, it has to grant maintenance and only discretion left with the court is with regard to quantum of maintenance and as held above the applicant, who is the wife of the O.P has no independent source of income for her maintenance and is totally dependent on her parents. And as held above the O.P has sufficient, rather handsome income from his service in defence. And as the applicant has no independent source of income to maintain herself and is dependent on her parents, so she needs adequate money for her proper maintenance so keeping in view that above discussed evidence facts, circumstances the status of the parties the need of the applicant, the income of the O.P & the principle laid down by the Hon’ble Supreme Court in the above referred case, I find it just, legal and proper to conclude that the applicant is entitled to maintenance allowance of Rs.20000/-(Twenty Thousand) per month from her husband Prem Soren for her maintenance.” 14. This Court finds that the marriage between the parties is not in dispute. The petitioner claimed that the applicant was his second wife and also simultaneously argued before this Court that under the tribal laws, second marriage was permissible. The petitioner claimed that he was still ready to keep the applicant. It was never the case of the 5 petitioner that the applicant had any source of income and the allegation was also made against the applicant that she was in an adulterous relationship with A.S.I. Darpa Hansdah, but under pressure, she married the petitioner. The applicant was cross-examined and during cross-examination, she deposed that her abortion was done in Chaibasa, in one nursing home, where her husband was only present. She denied the suggestion of the petitioner that prior to her marriage with the petitioner, her marriage was finalized with A.S.I. Darpa Hansdah, but under pressure, she married the petitioner and she denied that she was still having relationship with A.S.I. Darpa Hansdah. She had also denied the suggestion that she did not want to live with her in-laws and wanted to live as per her own will, and filed the case with concocted story and that the petitioner was ready to keep her in his house with dignity. 15. The case of the applicant was duly supported by the other witnesses, who have also been cross-examined. They have also fully supported the case of the applicant with regard to torture and forcible abortion of the applicant at the hand of the petitioner, and that she was aborted at Chaibasa. The father of the applicant was examined as AW4 and had also fully supported the case of the applicant and was duly cross-examined. 16. The learned court, after scrutinizing the materials on record, has clearly recorded a finding that the husband was having salary of Rs.80,000/- per month and was working in the Ministry of Defence, Government of India, as a Section Officer, but was not maintaining the applicant although he was capable to maintain her. It has also been recorded that the petitioner had forced the applicant to stay at her parental house and it was the parents, who were maintaining the applicant. It has also been recorded that the applicant had no independent source of income. 17. The learned court has also recorded that even the cross- examination of the applicant and her other three witnesses could not impeach their testimonies and nothing could come in favour of the petitioner through their cross-examination nor the petitioner could 6 prove any evidence on record to rebut and falsify the claim of the applicant. The learned court recorded that the evidence of the applicant and three witnesses remained unimpeached, credible, trustworthy, intact, and inspire confidence and ultimately held that the petitioner was entitled for maintenance under Section 125 Cr.P.C. and the quantum of maintenance was also fixed at Rs.20,000/- per month, although the applicant had claimed maintenance to the tune of Rs.30,000 per month. The quantum of maintenance was also fixed by a well-reasoned order as recorded in paragraph no. 11 of the impugned order. 18. This Court finds that the learned Family court has meticulously considered the evidences produced on behalf of the applicant and has also considered the fact that the petitioner did not present himself for cross-examination. The learned counsel for the petitioner has not made any submission with regard to the reason for non-appearance of the petitioner for cross-examination. 19. This Court finds that every aspect of the matter was duly taken into consideration while holding that the applicant was entitled for maintenance and also while fixing the quantum of maintenance. The petitioner having not appeared for his cross-examination and having not filed any evidence in support of his case, the evidence of the petitioner could not have been taken into consideration. This Court further finds that the plea of the petitioner that the applicant was his 2nd wife and that she was living in adultery was required to be substantiated by leading cogent evidence which has not been done by the petitioner. Further the fact that the petitioner is working in the Ministry of Defence, New Delhi, has also not been denied by the learned counsel for the petitioner during the course of argument. 20. It is not the case of the petitioner even before this Court that the applicant is having any independent source of income. This Court is of the considered view that the quantum of maintenance of Rs.20,000/- per month also order does not call for any interference. 7 21. Considering the aforesaid facts and circumstances, this Court finds no perversity illegality or material irregularity in the impugned order, which does not call for any interference. 22. Accordingly, this criminal revision is hereby dismissed. 23. Let a copy of this order be communicated to the court concerned through fax/email. Saurav (Anubha Rawat Choudhary, J.) 8