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2010 DIGILAW 930 (JHR)

Dillp Kumar v. State of Jharkhand

2010-09-23

JAYA ROY

body2010
ORDER By the Court.-Petitioner has rued this revision application against the order dated 15th September. 2009 passed by the Principal Judge. Family Court Palamau at Daltoganj in connection with Misc. Case No. 66 of 2005, whereby the Court below has directed the petitioner to pay monthly maintenance allowance @ Rs. 1500/- per month from the date of filing of the application and to pay before 15th day of each month from October. 2009 and onwards Further it has been directed also to pay arrear of maintenance allowance from 16.11.2005 to September. 2009 in three equal installments within three months of the order. 2. The applicant-opposite party's case in brief is that she is legally married wife of the petitioner. Their marriage was solemnized according to the Hindu Ritual and Customs on 26.5.1985 and the applicant-opposite party having two• sons namely Alok Kumar and Mantn Kumar from the said wedlock. After sometime the applicant-opposite party came to know that her husband is a man of loose character and he has kept a mistress and often used to live with her. On 29.9.1997 the petitioner sent the applicant-opposite party to her naihar and told her that he would come back and took her within 10-15 days. But thereafter the petitioner never came to her to take her back to her sasural and the petitioner used to neglect the petitioner since 1997 and not giving any amount of maintenance to her. On 014.10.1997, the applicant-opposite party went to the residence of petitioner with her father and there she found that one lady was staying in the said house who hold her that she had already married the petitioner. The further case of the applicant-opposite party is that she is a semi-literate lady having no source of income to maintain herself. On the other hand the petitioner is working as a operator in Bokaro Steel Factory and used to earn a sum of Rs. 20.000/- per month as salary. 3. The petitioner appeared and filed his show-cause on 18.3.2008 stating therein that the petition filed by the petitioner under Section 125. Cr PC is not at all maintainable. But he has accepted that the applicant-opposite party was her first wife and both the parties divorced each other on the basis of mutual consent and after divorce she is living in a village home. Cr PC is not at all maintainable. But he has accepted that the applicant-opposite party was her first wife and both the parties divorced each other on the basis of mutual consent and after divorce she is living in a village home. He has further stated in his show-cause that earlier also the applicant-opposite party has filed a case under Section 125. Cr PC being Misc. Case No. 24 of 1999 which has been dismissed by the Court of C.J.M. Ranchi. The Dis1:I1ct Judge. Bokaro on 19.9.1996 has allowed the divorce between the parties under Section 13(b) of the Hindu Marriage Act in Matrimonial Case No.4 of 1996. The applicant-opposite party had filed a Miscellaneous case being Misc. Case No. 9 of 1998 under Order IX. Rule 13. CPC before the District Judge. Bokaro but the same has also been dismissed. The petitioner has also stated in his petition that both the sons are now major and their elder son is studying engineering in Bhopal and younger son is a student of D.P.S. Bokaro and he used to maintain both the sons. He has further stated that after mutual divorce with the applicant-opposite party he married with another lady namely Vandana and at present. he is residing with her. The applicant-opposite party had also filed a complaint case under Section 498-A. IPC against the petitioner being C-564 of 1997 but the same was dismissed by the C.J.M.. Ranchi. 4. The applicant-opposite party has examined three witnesses to prove her case including herself. On the other hand petitioner has examined himself only as O.P.W 1 but he has produced some documentary evidence Le. Ext. A-certified copy of the judgment of Matrimonial Case No. 4 of 1996. Ext. B-certified copy of the deposition of the opposite party. Ext. C-certified copy of the deposition of petitioner- Dilip Kumar. Ext. D-certified copy of the decree. Ext. E-certified copy of the order sheet of Matrimonial Case No: 4 of 1996; Ext. F -certified copy of the Judgment of case No. C-964 of 1997. Ext. G-certified copy of the order-sheet of Misc Appeal No.9 of 1998 and Ext. H-Marriage certificate. 5. The learned counsel for the petitioner Mr. Ext. D-certified copy of the decree. Ext. E-certified copy of the order sheet of Matrimonial Case No: 4 of 1996; Ext. F -certified copy of the Judgment of case No. C-964 of 1997. Ext. G-certified copy of the order-sheet of Misc Appeal No.9 of 1998 and Ext. H-Marriage certificate. 5. The learned counsel for the petitioner Mr. A.S. Dayal submits that the trial Court has not considered the facts and circumstances of the case as the petitioner has filed the documentary evidence which clearly proves that both the parties have got divorce decree on the basis of mutual consent from the District Judge. Bokaro. Mr. Dayal has further contended that the applicant-opposite party earlier also filed an application under Section 125. Cr PC which has been dismissed by the learned C.J.M. Ranchi. Thus the applicant-opposite party cannot harass the petitioner in this way by filing one after another petition for payment of her maintenance. Mr. Dayal has further contended that it has come in the evidence of applicant-opposite party that she is maintaining herself by selling the vegetables etc. in the market and from this business she has good income and such it cannot be said that she is unable to maintain herself. 6. Mr. Jai Shankar Pandey learned counsel appearing for the applicant-opposite party has contended that even if the petitioner divorced the applicant-opposite party by mutual consent and if she has not remarried she cannot be denied for maintenance by virtue of Section 125(4) of the Cr PC which does not apply to her case. 7. In support of his contention learned counsel has cited the decisions of the Honble Apex Court in the case of Vanamala (Smt.) v. H.M. Ranganatha Bhatta reported in 1995 (2) East Cr C (NOC) 11 : 1995 (5) SCC 299 and in the case of Gurmit Kaur v. Surjit Singh @ Jeet Singh reported in 1996 (1) Cr C 232 (SC) : 1996 (1) SCC 39 . The Honble Apex Court has held in the case of Vanamala (Smt.) v. Ranganatha Bhatta reported in 1995 (5) SCC 299 which is as follows :- 3. Section 25 of the Code makes provision for the grant of maintenance to wives. children and parents. Sub-section (1) of Section 125 inter alia says that if any persons having sufficient means neglects or refuses to maintain his wife unable to maintain herself. Section 25 of the Code makes provision for the grant of maintenance to wives. children and parents. Sub-section (1) of Section 125 inter alia says that if any persons having sufficient means neglects or refuses to maintain his wife unable to maintain herself. a Magistrate of the first class may upon proof of such neglect or refusal order such persons to make a monthly allowance for the maintenance of his wife not exceeding Rs. 500 in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct Clause (b) of the Explanation to the subsection defines the expression "wife" to include a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would therefore be entitled to maintenance if she could show that the respondent had neglected or refused to maintain her. Counsel for the respondent, however invited our attention to sub-section (4) of Section 125 which reads as under :- 125. (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. On a plain reading of this section it seems fairly clear that the expression "wife" in the said sub-section does not have the extended meaning of including a woman who has been divorced. 'This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the woman to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. After divorce where is the occasion for the woman to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context therefore subsection (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree• for divorce. In our view therefore this contention is not well founded. 8. In another case the Honble Apex Court has also held that if the first marriage has been put to an end and the applicant-opposite party remains unmarried and she is unable to maintain herself then she is entitled to claim maintenance till she remains unmarried. 9. Mr. Pandey the learned counsel for the opposite party has further cons tended that the petitioner has not denied neither in his show-cause nor in his evidence before the Court that he is working as an operator in Bokaro Steel factory and his monthly salary is Rs. 20.000/- per month. He has further submitted on the other hand that the applicant-opposite party is anyhow maintaining herself by selling vegetables in the market. Therefore the trial Court has rightly held that the applicant-opposite party is entitled to claim maintenance under Section 125. Cr PC. Considering the submissions made by both the parties and the materials on record and also in view of the decision of the Hon'ble Apex Court as stated earlier. I do not find any illegality and impropriety in the order impugned. Accordingly this revision application is hereby dismissed. Revision dismissed.