R/o Near S.P. Office, Press Club, P.O. + P.S – Pokharia, District – Begusarai v. 1. The State of Jharkhand 2
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1359 of 2023 Vivek Kumar, Aged about 48 years, S/o – Uday Narayan Prasad, Present Address: R/o – Flat No.M1003, Township, Bhusan Power & Steel Limited, Village – Thelkoloi, P.O. – Lapanga, P.S. – Rengali, District – Sambalpur (Odisha) Permanent Address: R/o Near S.P. Office, Press Club, P.O. + P.S – Pokharia, District – Begusarai (Bihar) … … Petitioner Versus 1. The State of Jharkhand 2. Smt. Anjushree Sinha, W/o Vivek Kumar, D/o – Sri B.B. Asthana 3. Minor Baibhavi Shree, Aged about 11 years, D/o – Vivek Kumar represented by her legal representative mother opposite party no.2. Both R/o – Duplex No.21, Road No.2, Bhubaneshwari Green Estate, Ghorabandha, P.O. – Telco, P.S. – Govindpur, Town – Jamshedpur, District – East Singhbhum … … Opposite Parties --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Parties --- : Mr. Pratiush Lala, Advocate : Mr. P.D. Agrawal, Spl. PP --- I.A. No.10545 of 2023 04/08.08.2024
Legal Reasoning
The learned counsels for the petitioner and the State are present. 2. The learned counsel for the petitioner has submitted that a petition seeking condonation of delay of 206 days has been filed being I.A. No.10545 of 2023. 3. Upon going through the petition for condonation of delay and being satisfied, the delay in filing the criminal revision is hereby condoned. 4.
Decision
I.A. No.10545 of 2023 stands disposed of. Cr. Rev. No. 1359 of 2023 5. This petition has been filed against the order dated 19.12.2022 passed by learned Principal Judge, Family Court, Jamshedpur under section 127 of Cr.P.C. in connection with Original Maintenance (Alteration) Case No.16 of 2019 whereby the learned court has allowed the said case on contest and modified the order dated 29.06.2016 passed in Misc. Case No.94 of 2015 and directed the petitioner to pay Rs.12,000/- per month to the opposite party no.2 and Rs.13,000/- per month to opposite party no.3 (minor daughter of the petitioner) and further a direction has been made to make payment of Rs.5,000/- as litigation cost. 6. The learned counsel for the petitioner while assailing the impugned order has submitted that though two judicial pronouncements between the parties were not brought on record before the court concerned, but the same can still be taken into consideration in view of section 41 of the Indian Evidence Act. Those, two judgments are relating to Matrimonial Suit No.125 of 2015 decided on 16.07.2018 against the opposite party no.2 under Section 9 of the Hindu Marriage Act, 1955 directing the wife of the petitioner to return from her parental house for restitution of conjugal rights with the petitioner within a period of two months. The other judgment is the judgment passed in Civil Suit (MAT) No.30 of 2019 whereby a divorce has been granted in favour of the petitioner vide decree dated 28.10.2021 and the custody of the child i.e. O.P. No.3 has been directed to be given to the petitioner. 7. The learned counsel has relied upon the judgment passed by Hon’ble Bombay High Court in the case of Vitthal Shriram Aghav and others Vs. Rakhamabai Shriram Aghav and another in Second Appeal No.353 of 2017 dated 10.06.2022 to submit that the subsequent event can be taken into consideration and the documents annexed with the revision petition can be taken into consideration in spite of the fact that these documents were not produced before the court concerned. He has also relied upon the judgment passed by this Court reported in 2024 1 Crimes (HC) 451 [Dinesh Kumar Vishwakarma versus State of Jharkhand and others] and referred to Section 125 (4) to submit that if the wife does not abide by the order passed in restitution of conjugal rights, then in view of the section 125 (4), she would not be entitled for maintenance. 8. The learned counsel submits that in view of the aforesaid circumstances, the impugned order regarding maintenance calls for interference. 2 9. During the course of argument, it transpired that the petitioner had also filed one Original Maintenance No.9 of 2019 under section 127 Cr.P.C to stop maintenance of the opposite party no.1 but the same stood dismissed for non-prosecution vide order dated 04.02.2023 and the impugned order in the present case has been passed earlier on 19.12.2022. 10. Upon perusal of the impugned order, this Court finds that by the impugned order the petition filed under section 127 Cr.P.C. seeking enhancement of maintenance has been disposed of. The maintenance was originally fixed at Rs.6,000/- per month to each of the applicant total being Rs.12,000/- vide order passed on 29.09.2016 which has been enhanced to Rs.12,000/- per month to the wife and Rs.13,000/- per month to the minor daughter. The show cause filed by the petitioner mentioned about the pendency of Original Misc. Case No.9 of 2019 filed by the petitioner-husband under section 127 Cr.P.C. seeking stoppage of maintenance which has been dismissed for default vide order dated 04.02.2023. The petitioner instead of taking steps to get the Misc. Case No.9 of 2019 restored has filed this case challenging the order of enhancement of maintenance. Further, the petitioner filed his show cause and alleged that legal notice along with copy of the judgement passed in Mat. Suit No. 125 of 2015 by learned Senior Civil Judge, Jharsuguda (Odisha) was sent to the applicant but the applicant did not respond. 11. In order to prove her case, the applicant examined herself and her mother as P.W.1 and P.W.2, respectively. The impugned order reveals that she supported her case, and nobody appeared on behalf of the petitioner to cross-examine these two witnesses. So far as the petitioner is concerned, he did not lead any evidence before the court concerned. The learned court referred to the various documentary evidence exhibited on behalf of the applicant and ultimately recorded that there was already an order of maintenance passed in Misc. Case No.94 of 2015 passed in 2016. The applicant was seeking enhancement due to high financial liabilities. The husband, who was a Senior Manager at Bhushan Power and Steel Limited having salary of 3 Rs.80,000/- per month and therefore the court held that the applicants were entitled for enhancement of maintenance and ultimately modified the order of maintenance dated 29.09.2016 and passed the impugned order. 12. The petitioner admittedly neither cross-examined the witnesses nor led any evidence, oral or documentary, to substantiate his plea raised in the show-cause. It is not clear as to whether the petitioner actually sent, and whether the applicant-wife actually received the legal notice said to have been sent along with copy of the judgement passed in Mat. Suit No. 125 of 2015 by the court in Orissa. This was certainly a matter of evidence. The applicant-wife was also one of the witnesses, she was also not cross-examined and therefore the communication of the order of restitution of conjugal rights was apparently not proved. There is no explanation from the side of the petitioner for not adducing any evidence before the court concerned or even cross-examine the witnesses of the applicants. 13. Further with respect to the judgment passed in Civil Suit (MAT) No.30 of 2019 whereby a divorce is said to have been granted in favour of the petitioner vide decree dated 28.10.2021 and the custody of the child i.e. O.P. No.3 has been directed to be given to the petitioner is concerned, the impugned order does not reflect that the pendency of Civil Suit (MAT) No.30 of 2019 seeking divorce and custody of child was ever mentioned in the show cause filed by the petitioner. This Court also finds that that nothing is forthcoming from the side of the petitioner as to what steps the petitioner has taken to get the custody of the child after the order passed in his favour and admittedly the child is with the wife. Further, it is not clear from the records as to whether the decree of divorce has attained finality and in view of the provisions of section 125 Cr.P.C., even a divorced wife is entitled for maintenance. So far as the child is concerned, there is no scope for denial of maintenance who is studying in school and living with the wife. 14. So far as the judgment passed by Hon’ble Bombay High Court in Second Appeal No.353 of 2017 (supra) which has been relied upon 4 by the petitioner is concerned, the same also does not apply to the facts and circumstance of this case in view of the aforesaid discussion, with regard to restitution of conjugal right, divorce and custody of the child. 15. So far as the judgment passed by this Court in the case of Dinesh Kumar Vishwakarma Vs. State of Jharkhand (supra) as relied upon by the petitioner is concerned, the materials on record before the court concerned who had passed the order of maintenance were duly appreciated. In the present case, the petitioner after having filed show cause before the court neither cross-examined witnesses of the applicant nor filed any evidence on his behalf either oral or documentary. 16. The revisional jurisdiction of this Court is confined to appreciating the legality, validity and propriety of the impugned order passed by the court concerned based on materials which are placed before the court, and the scope of revision cannot be extended to the petitioner, who for no reasons, did not participate in proceeding before the court concerned after filing his show cause. Accordingly, the said judgment does not apply to the facts of this case. 17. So far as the merit of the matter regarding enhancement of maintenance, no arguments have been advanced. Otherwise also, this Court has gone through the impugned judgement carefully and finds that the enhancement of maintenance is based on appreciation of materials placed on record before the learned court. No perversity has been pointed out by the learned counsel for the petitioner nor this Court finds any perversity in the impugned order of enhancement of maintenance. 18. In view of the aforesaid facts and circumstances, this Court is not inclined to take into consideration the aforesaid two judgements regarding restitution of conjugal rights and divorce/custody of child to set aside the impugned order of maintenance in revisional jurisdiction of this Court. The matters which were required to be brought on record before the learned court having not been done for unexplained reasons, cannot be considered for the first time in revisional 5 jurisdiction. Further, there is no explanation on the part of the petitioner as why he did not pursue his remedy under section 127 of Cr.P.C. for modification of maintenance and allowed the same to be dismissed for default and did not further take any legal recourse. 19. Considering the totality of facts and circumstances, this Court finds no merits in this petition, which is accordingly dismissed. 20. However, it is certainly open to the petitioner to take steps in connection with the Original Maintenance Case No.9 of 2019 filed under section 127 Cr.P.C which has already been dismissed for non- prosecution as per the status report in CIS or to take appropriate steps in accordance with law. 21. Let a copy of this order be communicated to the court concerned through FAX/Email. Saurav/- (Anubha Rawat Choudhary, J.) 6