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2013 DIGILAW 909 (JHR)

Nakul Mandal v. State of Jharkhand

2013-07-25

H.C.MISHRA

body2013
ORDER Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner is aggrieved by the order dated 26.04.2013 passed by the learned Principal Judge, Family Court, Dumka, in Cr. Misc. petition No. 45 of 2011, whereby the petitioner has been directed to make the payment of Rs.4,000/- per month as maintenance to his deserted wife. 3. The impugned order shows that the application under Section 125 of the Cr.P.C., was filed by the opposite party No. 2, Namita Mandal, claiming herself to be the legally wedded wife of the petitioner and also stating that she was being subjected to cruelty and torture for demand of dowry. It is also stated in the petition that the petitioner had kept a santhali tribal lady as his concubine, and both of them had tried to strangulate the opposite party-wife for which there was a criminal case filed by her. It appears that in the said criminal case there was a direction to the petitioner to keep his wife along with him properly, but she was again subjected to cruelty and torture and she was again assaulted and due to the injuries sustained by her, she was also hospitalised and ultimately, she was driven out of her matrimonial home. Claiming that she had no means to maintain herself whereas her husband was having his own tractor, by which he was supplying brick, stone chips and sand, out of which he was earning more than Rs.15,000/-per month and he was also having 40 Bighas of cultivable land, from which also he had income, the application for maintenance under section 125 of the Cr.P.C., was filed. 4. The petitioner appeared in the Court below, but did not file any reply. However, he adduced witnesses in support of his case. The impugned order shows that three witnesses were examined by the applicant-wife in the Court below, whereas six witnesses were examined on behalf of the petitioner. The witnesses examined by the applicant supported the case of cruelty and torture as also of assaults and also of keeping the concubine. They also deposed about the income of the petitioner from the tractor, as also from the landed property. 5. The witnesses examined by the applicant supported the case of cruelty and torture as also of assaults and also of keeping the concubine. They also deposed about the income of the petitioner from the tractor, as also from the landed property. 5. From the discussion of the evidence of the witnesses examined on behalf of the petitioner, in the impugned order, it appears that some of the witnesses had stated that the applicant-wife had gone mad, which was not the case even of the petitioner in the Court below. It also appears from the discussion of the witnesses that one witness, O.W.4 Gurupado Mirdha had admitted in his cross-examination that the petitioner was having a tractor and when the driver used to remain on leave he himself used to carry bricks on his tractor. This witness has also admitted that the petitioner had 20 Bighas of land. O.W.-5, Bhutnath Mandal is the father of the petitioner and O.W.-6 is the petitioner himself, and they have specifically stated in their evidence that they shall not keep the applicant-lady with them. It also appears that they have stated that the petitioner is only working as a labour on the tractor and he has got only about 4 Bighas of land in his share. 6. The Court below on the basis of the evidence on record has found that the opposite party No. 2 had sufficient reasons for living separately from her husband and has directed the petitioner to make the payment of Rs.4,000/-per month as maintenance to his deserted wife. 7. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, it has come in evidence that the petitioner is only working as a labour and he is having only 4 Bighas of land and out of the said earning, it is not possible for the petitioner to make the payment of Rs.4,000/-per month. Learned counsel has accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 8. Learned counsel for the State has opposed the prayer and has submitted that the maintenance allowed by the Court below is based on the evidence on record. 9. After having heard learned counsels for both the sides and upon going through the impugned order, I find that the marriage between the parties is an admitted fact. 8. Learned counsel for the State has opposed the prayer and has submitted that the maintenance allowed by the Court below is based on the evidence on record. 9. After having heard learned counsels for both the sides and upon going through the impugned order, I find that the marriage between the parties is an admitted fact. On the basis of the evidence on record, I find that the Court below has come to the correct finding that the opposite party wife has sufficient reasons for living separately from her husband. Even the evidence of O.W.-6 and O.W.-5, who are the petitioner and his father, have categorically stated in the Court below that they shall not keep the opposite party No. 2 with them. As on the point of means to the petitioner to make the payment of Rs.4,000/-per month, I find that it is a clear case of the opposite party No. 2, that the petitioner is having his own tractor and he is doing the supply work of bricks, stone chips and sand, from which the petitioner was earning more than Rs.15,000/-per month, apart from the landed property. O.W.4 Gurupado Mirdha, the witness examined by the petitioner himself, has admitted in his cross-examination, that the petitioner was having 20 Bighas of land whereas the father of the petitioner, as also the petitioner, have also admitted that the petitioner is having 4 Bighas of land in his share. It also appears from the evidence of the witness examined on behalf of the petitioner that the tractor belonged to the petitioner and he is doing the supply work of the bricks, as the witness has admitted that the petitioner drives the tractor when his driver remains on leave and he carries the bricks on his tractor. This clearly supports the case of the opposite party No. 2 that the petitioner is having his tractor and he is doing the supply work on bricks, stone chips and sand and he has sufficient means to maintain his wife, and he is capable to make the payment of Rs.4,000/-per month to his deserted wife, which cannot be said to be excessive by any parameter. 10. In the facts and circumstance of this case, I do not find any illegality and/or irregularity in the impugned order passed by the Court below, worth interference in the revisional jurisdiction. 10. In the facts and circumstance of this case, I do not find any illegality and/or irregularity in the impugned order passed by the Court below, worth interference in the revisional jurisdiction. There is no merit in this application and the same is accordingly, dismissed.