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2015 DIGILAW 1121 (JHR)

Aditya Tomar v. State of Jharkhand

2015-09-16

AMITAV K.GUPTA

body2015
Order : This revision is directed against the order dated 21.11.2014 passed by the learned Principal Judge, Family Court in Maintenance Case no. 162 of 2009 whereby the petitioner was directed to pay the maintenance amount of Rs. 15,000/- per month to the opposite party-wife. 2. Learned counsel for the petitioner has assailed the impugned order and submitted that without assessing the actual income of the petitioner, the learned trial court has directed the petitioner to pay an exorbitant amount of Rs. 15,000/-. It is urged that the learned court did not afford an opportunity to the petitioner to lead the evidence in rebuttal to the claim. It is urged that the petitioner had met with an accident due to which he could not attend to his job consequently he lost his job and at present he has no source of income. It is contended that the Court below should have considered the fact that the opposite party is a graduate in management and is earning Rs. 25,000/- per month and is capable of maintaining herself. It is submitted that since the opposite party is earning a handsome salary, hence, she is not entitled to any maintenance to be paid by the petitioner. 3. Learned counsel on behalf of opposite party has submitted that the petitioner was holding the post of Manager in Reliance Insurance Company and he runs an Electrical goods shop at Dehradun in the name and style of ‘Doon West’. It is argued that despite receipt of the notice the petitioner had abstained from participating in the proceeding in the court below. That in fact the petitioner had instituted a Matrimonial Suit for divorce before Dehradun court, which was subsequently transferred to the Family Court at Dhanbad, by the orders of Hon’ble Supreme Court. That the opposite party had instituted C.P. Case no. 1654 of 2008 under Section 498A I.P.C., and Dowry Prohibition Act, against the petitioner at Dhanbad civil courts. The petitioner faced the trial in the said case and was convicted for the offence under section 498A I.P.C and under Section 4 of the Dowry Prohibition Act. 4. It is urged that the Matrimonial Suit instituted by the petitioner was dismissed whereafter the petitioner had filed Misc. Case no. The petitioner faced the trial in the said case and was convicted for the offence under section 498A I.P.C and under Section 4 of the Dowry Prohibition Act. 4. It is urged that the Matrimonial Suit instituted by the petitioner was dismissed whereafter the petitioner had filed Misc. Case no. 1 of 2014 for restoration of the Matrimonial Suit and he was fully aware about the pendency of the proceeding under Section 125 Cr.P.C., but he willfully and intentionally abstained from participating in the proceeding despite several opportunities given to him. It is submitted that order impugned has not been passed ex-parte and it does not suffer from any illegality or impropriety meriting any interference by this Court and the revision is fit to be dismissed. 5. Heard. On going through the impugned order, it is amply clear that the trial court by order dated 29.01.2010 has taken cognizance of the fact that despite notice being served upon the petitioner he abstained from appearing before the court. It is evident that on 13.09.2010, the petitioner filed his appearance through his counsel. However, on subsequent dates several adjournments were granted on the prayer of the petitioner seeking time to file his show cause. Inspite of the indulgence of the trial court, the petitioner did not file the show-cause. Consequent thereto, by order dated 27.07.2011, he was debarred from filing the show cause. The petitioner remained absent on subsequent dates and on 10.02.2014, he filed the petition for recall of the order dated 27.07.2011 debarring him from filing the show cause. The trial court took a lenient view and permitted him to file the show-cause on payment of cost of Rs. 5,000/-. The learned trial court has observed that despite nine adjournments, the cost was not paid by the petitioner subsequently, a petition was filed seeking permission to cross-examine the witnesses who had been discharged. The Court below in the interest of justice was indulgent enough to allow the petition and as deposit of the cost the written statement of the petitioner was taken on record. 6. It transpires that inspite of repeated directions by the learned trial court that the petitioner be physically present before the Court, the petitioner for reasons best known to him, did not to appear and the proceeding lingered for nearly four years. 6. It transpires that inspite of repeated directions by the learned trial court that the petitioner be physically present before the Court, the petitioner for reasons best known to him, did not to appear and the proceeding lingered for nearly four years. It has been observed in the impugned order that on the date of judgment in the criminal case i.e. on 29.09.2014, the petitioner was present in the other court but he did not bother to file his appearance before the Family Court. As noticed above the Matrimonial Suit was transferred to the Family Court at Dhanbad which stood dismissed for default by order dated 10.12.2013 whereafter the Misc. Case no. 01 of 2014 was filed by the petitioner for restoration of the said Matrimonial Suit. This was again dismissed for default by order dated 03.07.2014. 7. The opposite party has categorically stated that the petitioner/husband has an income of Rs. 1.5 lakhs per month from the Electronics goods shop and also has huge movable and immovable property at Dehradun. She has deposed that the shop is under the name and style of ‘Doon West’. 8. It is amply clear that the trial court has dealt with the evidence and taken note of the fact that opposite party/applicant was cross-examined at length but no suggestion was given to her that Doon West Electronics shop did not belong to the petitioner. Thus the inference can be drawn that the petitioner has a lucrative business. In the emergent facts and evidence on record, the contention of the learned counsel that the court below has awarded the quantum of punishment without assessing the income of the petitioner is not acceptable. 9. It is noticed from the sequence of events, that the petitioner had deliberately abstained from participating in the proceeding in the court below. It is abundantly clear that it was at his instance and application that proceeding was adjourned on several dates and the case had lingered for more than four years due to the lackadaisical attitude and delaying tactic adopted by the petitioner. 10. It is abundantly clear that it was at his instance and application that proceeding was adjourned on several dates and the case had lingered for more than four years due to the lackadaisical attitude and delaying tactic adopted by the petitioner. 10. It is settled proposition of law that Section 125 Cr.P.C. is a measure of social justice and the object of the proceedings is not to punish a person for his past neglect rather it is to compel a person to fulfill his moral, social and legal obligation to provide support to the dependent wife, children or parents who are unable to support themselves and who have a moral claim for support against such a person. The dominant and primary object is to ensure that the dependents who are unable to maintain themselves are not forced to live a life of destitution and vagrancy. It is the obligation of the husband to maintain his wife. He cannot take the plea that he is unable to maintain his wife due to financial constraints or he does not have sufficient means to provide for the maintenance. 11. The petitioner, in the present proceeding has taken the stance that opposite party/wife, is a qualified management graduate and is earning Rs. 25,000/- per month. Such plea without any proof is not tenable and it would be evident that the petitioner has not mentioned regarding the place of employment of the opposite party/wife or the company for which she was working. In the absence of any evidence the defence of the petitioner is fit to be relegated to the waste paper basket. 12. In this connection it is necessary to refer to the decision of the Hon’ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, (2015) 5 SCC 705 wherein it has been observed that ‘ …….. a woman who has been constrained to leave the matrimonial home, should not be allowed to feel that she has fallen from disgrace and move hither and thither arranging for subsistence. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. a woman who has been constrained to leave the matrimonial home, should not be allowed to feel that she has fallen from disgrace and move hither and thither arranging for subsistence. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the strata and status of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one…….’ It is well settled that the wife is entitled to the enjoyment of the comforts which she would have enjoyed at par while she was residing with her husband. 13. Therefore, in view of the settled principles there is no hesitation in concluding, taking into account the conduct of the petitioner, that the petitioner has willfully neglected and refused to provide for the maintenance of his wife/opposite party. In fact he has adopted a delaying tactic by lingering the proceeding by seeking repeated adjournments. From the evidence it can be gathered that he is a man of sufficient means. As a husband he is legally and morally bound to provide for the maintenance to his neglected wife. 14. Therefore, in view of the discussions made above, it is held that the learned court below has rightly awarded the maintenance of Rs. 15,000/- (fifteen thousand) per month to be paid by the petitioner from the date of filing of the application. Accordingly, the impugned order does not suffer from any illegality or infirmity and is hereby affirmed. 15. The petitioner shall pay the ordered maintenance amount in terms of the order of the court below within two months from the date of this order. 16. In the result the revision stands dismissed.