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Jharkhand High Court · body

2008 DIGILAW 158 (JHR)

Vivek Rai v. State of Jharkhand

2008-02-13

D.K.SINHA

body2008
Order This Cr. Revision is directed against the order impugned dated 6.7.2007 passed by the Principal Judge. Family Court, Bokaro in M.P. Case No. 38 of 2004 whereby and where-under the application under Section 125 Cr. P. C. for grant of ad interim maintenance preferred by the opposite party No.2 Sunita Rai was allowed and the petitioner, Vivek Rai was directed to pay a sum of Rs.1500/- being the maintenance amount and Rs.300/- being the litigation cost on the monthly basis to the opposite party No. 2 from the date of the filing of her application. 2. The prosecution story in short was that a proceeding under Section 125 of Cr. P.C. was initiated on the instance of the opposite party No. 2 with the prayer for direction to the petitioner herein to pay adequate maintenance. The marriage between the petitioner and the opposite party No.2 solemnized on 3.7.1998 was not disputed and it was stated that gifts were presented to the bridegroom. Even after her marriage there was persistent demand by the petitioner and for that she was subjected to torture mentally and physically. Being fed up, the complainant-opposite party No. 2 filet a complaint case No. 330 of 1999 against the alleged demand of dowry and torture in which the petitioner was arrested and subsequently he was enlarged on bail. It was further stated that the petitioner was an Engineer having monthly salary of Rs.35,000/- besides, his earning from his immovable properties. In view of the alleged facts, the opposite party No.2 claimed a sum of Rs.15,000/- per month as maintenance on monthly basis as she had no other source of income and was dependent upon her retired father. 3. The petitioner appeared in the said proceeding and filed rejoinder by criticizing the nature of the O.P. No. 2 that members of his family were shocked when she refused to participate in household work and preparation of food, when she came to her matrimonial home, on the pretext that household work in her parental home were used to be done by the servants and that she started misbehaving with all the members of his family including his unmarried sisters. It was stated that the petitioner took her to Delhi on 14.9.1998 but, in the train she started abusing her father-in-law and sister-in-law causing embarrassing to the petitioner and in Delhi also she refused to cook food on the ground that she had obtained higher education not for cooking food and that she never allowed the petitioner to consummate. Finally it was stated that because of the criminal case instituted against him, the petitioner was arrested and consequently lost his job because of his detention in judicial custody. It was stated that the Opposite Party No. 2 was employed and her earning was of Rs.14,000/- per month which has been supported by him on affidavit and she was quite solvent to maintain herself. 4. The learned counsel for the petitioner submitted that only because of rude behaviour of the opposite party No.2 before the Principal Judge, Family Court, the order on the petition for ad interim maintenance could not be passed as she had levelled imputation against the Principal Judge, Family Court and that only on the direction of the High Court, the Principal Judge, Family Court disposed of the matter and passed the order of ad interim maintenance on 2.6.2007 allowing Rs.1500/- and Rs.300/- being maintenance and litigation cost monthly though her intention was to linger the matter. 5. Heard Mr. Jai Prakash, the learned counsel appearing for the petitioner, Mrs. Vandana Singh, the learned counsel for the Opposite Party No. 2 and Mr. I.N. Gupta, the learned A.P.P. for the State. 6. Mr. Jai Prakash, the learned counsel submitted that it was admitted fact that the petitioner was deprived from his job only because of his detention in judicial custody for the complaint case brought about by the opposite party No.2 which rendered him jobless, but the learned Principal Judge, Family Court, failed to take into consideration that the petitioner had no source of income and even then burden of maintenance as well as legal expenses were shad-dled upon him. who was unable to pay. Advancing his arguments Mr. Jai Prakash submitted that maintenance was allowed to the opposite party No. 2 only on whimsical ground that the petitioner was having a degree in Engineering and so he was competent and liable to pay the maintenance, which cannot sustain. who was unable to pay. Advancing his arguments Mr. Jai Prakash submitted that maintenance was allowed to the opposite party No. 2 only on whimsical ground that the petitioner was having a degree in Engineering and so he was competent and liable to pay the maintenance, which cannot sustain. On the other hand, opposite party NO.2-wife was an earning lady, quite solvent to maintain herself and she required money for enriching her academic career. There was no provision under Section 125 Cr. P.C. to meet out the expenses incurred in the study of wife. The amount of maintenance as has been fixed against the petitioner is arbitrary without disclosing his source of income and against the principle of. natural justice therefore, the impugned order dated 6.7.2007 passed by the Principal Judge, Family Court, Bokaro may be quashed. 7. Mr. Jai Prakash before parting. submitted that the provision of granting legal expenses .to the wife besides, monthly maintenance is alien. to the proceeding under Section 125 of Cr. P.C. which deals only with the maintenance and not legal expenses and in view of that matter also, the impugned order cannot sustain. 8. Mrs. Vandana Singh, the learned counsel appearing for the opposite party NO.2 strongly contrive-rted the contention made on behalf of the petitioner and refuted that the opposite party No. 2 has been earning Rs.14,000/- per month from known source. Admittedly, the petitioner was holding degree in engineering and was quite competent to get a job after he was released on bail but with the intention to defeat the interest of the opposite party no. 2 he pretended to be unemployed. Yet, he has substantial income from the ancestral' properties having his right therein 9. With reference to a decision reported in 1982 Cri. L.J. 485, the Orissa High Court in Basanta Kumari Mohanty vs. Sarat Kumar Mohanty held:- "No doubt an order under Section 125 can be passed only if a person having sufficient means neglects or refuses to maintain his wife, child, parents etc. It is however, well settled that the expression 'means' does not signify only visible means such as real property or definite employment and if a man is healthy and able-bodied he must be held to be possessed of means to support his wife, child etc. It is however, well settled that the expression 'means' does not signify only visible means such as real property or definite employment and if a man is healthy and able-bodied he must be held to be possessed of means to support his wife, child etc. Even the husband may be insolvent or a professional beggar or a minor or a monk, but he must support his wife so long as he is able-bodied and can eke out his livelihood. AIR 1925 Mad. 757 ; 1968 Cri. L.J. 1153(Delhi) and ILR(1963) Cut 415 Rel. on." 10. Having regard to the facts and circumstances, I find that the detention of the petitioner in judicial custody after institution of the criminal complaint case rendered him jobless and this fact has been strongly pleaded that consequently he has no source of income. I find that the O.P. No.2-complainant failed to produce any piece of evidence contrive-rting the defence of unemployment taken by the petitioner. 11. Section 125 of Cr. P.C. deals with order for maintenance of wife, children and parents which reads:- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b).....................,..................... . (c).......................................... .. ( d) . . .. . . . . . . .. . . .. .. . . . . . . . . . . . . .. . . . . . . . . . . . .. "Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this subsection, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person." 12. The contention of Mrs. The contention of Mrs. Vandana Singh, the learned counsel is that the petitioner is bound to maintain and pay such amount to the opposite party No.2, even if he had no source of income as he was holding a degree in Engineering does not sound convincing. As stated earlier, the O.P NO.2 did not produce any chit of paper or adduce evidence in support of the present earning of the petitioner from all source including from his ancestral property. The learned Principal Judge, Family Court in this way erred by not taking , in to consideration of this aspect and therefore, the impugned order dated 6.7.2007 is set aside. The matter is remanded back to the Principal Judge, Family Court, Bokaro to pass a reasoned order afresh preferably within eight weeks of this order after according equal opportunity to the parties. for adducing evidence in respect of the earning of the petitioner-husband. It would not be out of place to mention that the claim of the opposite party No. 2 for expenses to meet out the proceeding is tenable as per proviso of Section 125 of Code of Criminal Procedure. 13. This petition is allowed with the above observation.