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Jharkhand High Court · body

2015 DIGILAW 1120 (JHR)

Madhuri Goswami v. Rabindra Nath Goswami

2015-09-16

RAVI NATH VERMA

body2015
ORDER : Calling in question the legal validity of the order dated 22.01.2015 passed by the learned Principal Judge, Family Court, Bokaro in Maintenance Case No. 98 of 2013 whereby and whereunder the learned court below has declined to grant maintenance to the petitioner no.1 but has allowed the maintenance of Rs.1,000/- per month in favour of the petitioner no.2 from the date of the order, the petitioners have moved this criminal revision application. 2. Bereft of unnecessary details, the facts, which are necessary to be stated, is that at the instance of the present petitioner no.1 along with her minor son petitioner no.2, the above case was filed in the court below with the allegation that her marriage with the present opposite party Rabindra Nath Goswami was solemnized on 29.04.2007 and since after the marriage, she along with her husband were living at Balidih, Bokaro. Out of their wedlock, the petitioner no. 2 was born but after living there for almost one year, the present opposite party - the husband and his family members started demanding dowry from her and forced her to bring it from her father. Due to non-fulfillment of their demand, she was subjected to physical and mental torture and on 02.01.2012, she was brutally assaulted by her husband and was driven out from her matrimonial house along with her minor son. The petitioner no.1 was treated in a private hospital. Whereafter she filed a complaint case bearing no. 440 of 2012 against her husband and other relatives, which was referred to the police station and Balidih P.S. Case No. 82 of 2012 was instituted but as the petitioners were neglected by the present opposite party, they filed the aforesaid case for maintenance. It further appears that before her filing of maintenance case, the present opposite party had filed a divorce case bearing T(M)Suit no. 118 of 2011 in the same court i.e. Principal Judge, Family Court, Bokaro. As regard to the income of the opposite party, the petitioner has stated in the petition that her husband was working as an agent of LIC and Sahara and earning Rs. 30,000/- per month and also earning Rs.1,50,000/- annually from his ancestral property. 3. 118 of 2011 in the same court i.e. Principal Judge, Family Court, Bokaro. As regard to the income of the opposite party, the petitioner has stated in the petition that her husband was working as an agent of LIC and Sahara and earning Rs. 30,000/- per month and also earning Rs.1,50,000/- annually from his ancestral property. 3. After notice by the court below, the present opposite party filed his show cause in the court concerned with the pleading that it was the petitioner no.1-his wife, who treated him with cruelty and always pressurized him to live separately from other family members and because of her ill-behaviour, he even tried to commit suicide and lost his mental balance for which, he was treated in Sai Hospital, Bokaro as well as in BGH, Bokaro. The opposite party in his show-cause has admitted that he is an agent of Sahara as well as LIC but has also stated that the present petitioner-his wife is also an agent of LIC and gets sufficient commission to maintain herself and minor child and besides that, she is also doing the work of tailoring and embroidery. As such, she is not entitled to any maintenance. 4. The court below after considering the pleadings of both parties and the evidences adduced by the respective parties, directed the present opposite party to pay the maintenance of Rs.1,000/- per month to minor son but refused to grant any maintenance to the present petitioner no.1- the wife, on the ground that she is capable of maintaining herself. Hence, this revision. 5. Mrs. Vandana Singh, learned counsel appearing for the petitioners while assailing the order impugned as perverse and bad in law seriously contended that the court below without appreciating the evidences in right perspective rejected the claim of maintenance of the petitioner no.1 though none of the witness has clearly stated that the petitioner no.1 has independent source of income. It was also submitted that the court below has wrongly interpreted the suggestion given to P.W. 1- the father during his deposition in court below that petitioner no.1 is still working as an agent of LIC. It was also submitted that the court below has wrongly interpreted the suggestion given to P.W. 1- the father during his deposition in court below that petitioner no.1 is still working as an agent of LIC. It was also submitted that the court below has failed to appreciate the mandate of sub-section (1) of Section 125 of the Code of Criminal Procedure where the court has to give a specific finding on the sufficiency of income of the husband and in view of Section 106 of the Evidence Act, the onus was upon the husband-opposite party to prove his income. As such, the order impugned is fit to be set aside. 6. It appears from the record of this criminal revision application that even though the notice issued to the opposite party was served upon him but he preferred not to appear and contest the case. 7. In the application filed in the court below under Section 125 of Cr.P.C., the present petitioner no.1 has categorically stated that her financial condition is not good and she is not able to maintain herself and her minor son, who is a student of Class-Vth and she is fully dependent upon her parents, who have their own expenses. As regard to the income of her husband, she has stated that he is working as an Agent of LIC and Sahara and earning more than Rs.30,000/- per month and has also annual income of Rs.1,50,000/- from the ancestral property and this petitioner no.1 in her evidence has completely denied that she was ever the agent of either LIC or Sahara. Her father when examined as witness no.1, has also denied that his daughter has any source of income and stated that his daughter and the minor son are dependent upon him. This witness has also confirmed that his son-in-law is earning Rs.30,000/- per month from LIC and Sahara. Her father when examined as witness no.1, has also denied that his daughter has any source of income and stated that his daughter and the minor son are dependent upon him. This witness has also confirmed that his son-in-law is earning Rs.30,000/- per month from LIC and Sahara. During his cross-examination, it appears from his deposition that different suggestions were given to him and in course of recording at paragraph 23, the court has recorded that his daughter is also working as Agent of Sahara and LIC, but it appears that there is some mistake in recording this statement as in this part of evidence, the court has recorded only the suggestions and the court below merely relying upon that statement made in paragraph 23 of P.W.1 Laxmi Narayan Goswami denied to grant maintenance to petitioner no.1. Besides that, there is no evidence on record to show that the petitioner has any source of income. Even the witnesses examined on behalf of the present opposite party have only testified that she has sufficient income from tailoring and embroidery work. The present opposite party in his evidence has clearly denied that he has ever paid any maintenance either to his wife or to his minor son. “Maintenance” means shelter, food and other means of life and to deny the maintenance to the wife on the ground that she is also earning and capable to maintain herself and her minor son, is wholly irrelevant. The object of Section 125 Cr.PC is that the husband is to make his obligation to maintain his wife and children. 8. I have gone through the order impugned and have also examined the evidences adduced by the parties and I find that the court below has not considered that in view of Section 106 of the Evidence Act, the onus was upon the husband to bring on record the documentary evidence to show his income and merely relying upon the statement of the opposite party that due to illness, he is not doing any job of LIC or Sahara, rejected the claim of maintenance of petitioner no.1. The matter, therefore, needs re-consideration by the court below. 9. For the aforesaid reasons, this revision application is allowed and the order impugned is set aside. The matter, therefore, needs re-consideration by the court below. 9. For the aforesaid reasons, this revision application is allowed and the order impugned is set aside. The matter is remitted to the Principal Judge, Family Court, Bokaro to pass fresh order after giving proper opportunity to the parties and considering the evidences on record.