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2015 DIGILAW 1164 (JHR)

Bilendra Sahu v. State of Jhrkhand

2015-09-22

AMITAV K.GUPTA

body2015
ORDER This revision is directed against the order dated 29.02.2012 passed by the learned Principal Judge, Family Court, Ranchi in Maintenance Case no.9/2005 whereby the petitioner was directed to pay maintenance of Rs.1500/-p.m. each to O.P.no.2 and her minor daughter. 2. Learned counsel appearing for the petitioner, while referring to the impugned judgment, has submitted that the learned court below has itself held in para 37 that the pleading of the O.P. is defective so far as maintenance is concerned and despite the pleading being defective, the trial court has passed the impugned order on conjecture and surmises. It is submitted that the learned Principal Judge has held that no document or evidence whatsoever has been led for assessment of the income of the petitioner. It is submitted that the learned trial court, considering the fact that no evidence was brought on record to show the income of the petitioner, has observed that a labourer also earns Rs.125/-per day. It is submitted that even if the income is assessed at Rs.125/-per day, then the monthly income of the petitioner comes to Rs.3,750/-consequently order granting maintenance of Rs.3000/-p.m.(i.e. Rs.1500/-p.m. to each of the O.Ps.) is exorbitant and excessive. It is further submitted that petitioner is still ready and willing to keep the O.P. and his minor daughter with full dignity and honour. That the petitioner is saddled with the responsibility to provide for the maintenance of his parents and other family members. Accordingly, it is urged that the awarded maintenance amount be set aside and reduced to a reasonable amount taking into account the liabilities of the petitioner and the assessment of income by the trial court. Learned counsel appearing on behalf of O.P.-wife has contended that petitioner had been making allegation that O.P.-wife was living in adultery. The petitioner had even denied the fatherhood of his minor daughter. That P.W.5 who has been examined as a witness has stated that petitioner plies auto-rickshaw and has agricultural income and the approximate monthly income of the petitioner is about Rs.10,000/-to 12,000/-p.m. which is also supported by P.W.6. That the learned Principal Judge has observed that P.W.6 who is a literate person having knowledge of Hindi as well as Sanshkrit and has retracted from his earlier statement on affidavit by denying earlier statement that the petitioner plies auto-rickshaw on rent. 3. That the learned Principal Judge has observed that P.W.6 who is a literate person having knowledge of Hindi as well as Sanshkrit and has retracted from his earlier statement on affidavit by denying earlier statement that the petitioner plies auto-rickshaw on rent. 3. Learned counsel for the petitioner has countered and submitted that the learned Principal Judge has considered the evidence of the witnesses and has disbelieved the evidence of P.W.5 as there is no corroboration by any other witness that the petitioner plys autorickshaw or has income from such a source. 4. Having heard learned counsel for the parties and on going through the record it is apparent that the petitioner, in course of hearing on 25.03.2015, had categorically stated that he was not the biological father of the daughter of O.P.no.2 and had prayed for conducting the DNA test at his cost. The report of the DNA test is on record wherein it is established that petitioner is the biological father of the daughter of O.P. no.2. The conduct of the petitioner is condemnable as he has challenged the paternity of his own daughter. Moreover, the petitioner had deposited the cost for the DNA test and even paid the expenses for the to and fro journey of O.P. and her daughter. This itself establishes the fact that the petitioner has sufficient means of income and judicial notice of this fact is taken at this stage specially when such a prayer was made by the petitioner himself. The non-pleading of the means of income of the petitioner cannot be a ground for denying the maintenance as the provision of Section 125 Cr.P.C. has been incorporated by way of social legislation to sub-serve the purpose of rendering social justice to the dependents who are unable to maintain themselves. The petitioner is an able bodied person and has sufficient means to provide for the maintenance to the O.P-wife and the minor daughter and as per the mandate of law it is his moral and legal duty to fulfill his social obligation by providing for the maintenance of O.P-wife and the minor daughter. 5. At this juncture it is pertinent to take note of the decision of Hon'ble Supreme Court in the case of Shamima Farooqui vs. Shahid Khan, reported in (2015) 5 SCC 705 wherein at para 15 the Supreme Court opined and observed, as follows:- 15. 5. At this juncture it is pertinent to take note of the decision of Hon'ble Supreme Court in the case of Shamima Farooqui vs. Shahid Khan, reported in (2015) 5 SCC 705 wherein at para 15 the Supreme Court opined and observed, as follows:- 15. “….............there can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometime, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. There are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr.P.C., unless disqualified, is an absolute right...............” 6. In the aforesaid case reference was also made to the observation of Hon'ble High Court of Delhi in the case of Chander Prakash Bodh Raj vs. Shila Rani Chander Prakash wherein it has been opined:- “An able bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable to, due to reasons beyond control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily-permissible against him.” 7. Keeping in view the settled principles in view of the observation of the Courts, it is amply clear, from the discussions made above that when the petitioner had the means to pay for the cost of D.N.A test, the presumption is drawn that he has sufficient income though he has not disclosed the actual income. Be that as it may, he cannot shirk his legal and moral responsibility to provide support by paying the maintenance amount to O.P./wife and her minor daughter. Be that as it may, he cannot shirk his legal and moral responsibility to provide support by paying the maintenance amount to O.P./wife and her minor daughter. 8. In the backdrop of the discussions made above, it is held that the quantum of maintenance granted by the learned trial court is justified and reasonable and does not require any interference by this Court. The petitioner is directed to pay the maintenance amount as ordered by the trial court within two months from the date of this order. 9. Accordingly, this revision application stands dismissed. Application dismissed.