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2015 DIGILAW 1452 (JHR)

Rakesh Kumar Sinha v. State of Jharkhand

2015-11-23

RAVI NATH VERMA

body2015
Order : The petitioner has questioned the legality of the order dated 20.09.2014 rendered by the Principal Judge, Family Court, Dhanbad in M.P. Case no. 345 of 2009 whereby and whereunder the petition filed by the opposite party no.2 for grant of maintenance under Section 125 of the of Criminal Procedure (in short “the Code”) has been allowed and direction has been given to the petitioner to pay a monthly maintenance of Rs.5,000/- to the opposite party no.2 and Rs.1,500/- per month to each of minor child being a total of Rs.9,500/- 2. Filtering out the unnecessary details, the facts leading to filing of this revision application, are that the opposite no.2 is the legally wedded wife of this petitioner and their marriage was solemnized in the year 2005 but even before the marriage due to their close intimacy, the opposite party no.2 became pregnant, only thereafter the marriage was solemnized. After marriage, both the parties started living in a rented house. It was agreed and settled between the family of both the parties that the father of opposite party no.2 would pay a sum of Rs.2,500/- per month to the father of this petitioner towards the expenses of marriage and the said amount was paid till 06.03.2006. Out of the said wedlock, the opposite party no.2 gave birth to twin babies i.e. one son and one daughter in June, 2005 whereafter the opposite part no.2 was taken to her matrimonial house in the month of July, 2006. In spite of having executed all the house-hold works, she was physically and mentally tortured due to non-payment of any dowry during the marriage. Even she was brutally assaulted by her husband when she objected of his late night return to the house. She again gave birth to a female child on 26th June, 2007. It is also alleged that her husband and mother-in-law always used to blame her for non-fulfillment of demand of dowry and they had snatched all her „stridhan’ including ornaments and other costly belongings. In the month of August, 2008, she was driven out of her matrimonial house along with minor children. The opposite party no.2 being a helpless lady took a house on rent in Chiragora and her father used to give some financial help but the life of opposite party no.2 became miserable. In the month of August, 2008, she was driven out of her matrimonial house along with minor children. The opposite party no.2 being a helpless lady took a house on rent in Chiragora and her father used to give some financial help but the life of opposite party no.2 became miserable. She anyhow arranged a temporary job for her with poor salary but as she was unable to maintain herself and her minor children, the petition for grant of maintenance was filed as her husband has got sufficient means to maintain her and minor children. 3. After notice, the present petitioner appeared before the court below and filed his show-cause and raised finger on opposite party no.2 being a lady of questionable character and earlier one person had committed suicide due to his love affairs. It was also stated in the show-cause that the present petitioner has filed a case under Section 9 of the Hindu Marriage Act for restitution of his conjugal right but as the opposite party no.2 is living in adultery, she is not entitled to any maintenance in view of sub-section(4) of Section 125 of the Code. 4. Learned Principal Judge, Family Court after considering the pleadings of the parties and the evidences including the documents produced in court, allowed the prayer of opposite party no.2 and directed the petitioner to pay the monthly maintenance as indicated above. Hence, this revision. 5. I have heard learned counsels for the parties and have also been taken through the materials on record. Learned counsel appearing for the petitioner while assailing the order impugned as perverse and bad in law seriously contended that there is no sufficient evidence to prove the income of this petitioner on record and the court below without considering the mandates of Section 125 of the Code, wherein court has to decide the “sufficient means” of the petitioner, merely relying upon a pay-slip of the petitioner, directed to pay a highly excessive amount as maintenance to the opposite party no.2. It was also contended that the petitioner is working in a private firm Bajaj Capital as Sales Executive and in fact getting only Rs.15,000/- and odd as his monthly salary. Since his job is a growth oriented job, sometimes in a particular month, he gets a good incentive but it is not necessary that in every month he will get the same incentive. Since his job is a growth oriented job, sometimes in a particular month, he gets a good incentive but it is not necessary that in every month he will get the same incentive. It was also submitted that the opposite party no.2 is capable to maintain herself as well as her minor children and she has admitted this fact in her petition under Section 125 of the Code. It was also submitted that the suit filed for restitution of conjugal right has been allowed by the court concerned but the opposite party no.2 refused to live with him and after filing of the above case, she has lodged a false case under Section 498-A of I.P.C. against this petitioner and his family members. Hence, the order impugned deserves to be set aside. 6. Learned counsel appearing for the opposite party no.2 refuting the arguments of the learned counsel for the petitioner submitted that the petitioner is an able bodied man and he is earning approximately Rs.21,000/- per month. It was also submitted that before filing of the petition for maintenance, she had joined a job to maintain herself and minor children but subsequently left the same. It was also submitted that she has been living separately from her husband along with the legitimate minor children for the last many years after her ouster from her matrimonial house due to non-fulfillment of their demand of dowry. It was also submitted that since this petitioner and his family members had tortured her physically and mentally, there was every apprehension that the moment she returns to her matrimonial house, she would be subjected to physical harm. 7. After giving a thoughtful consideration of the rival submissions made on behalf of the learned counsels for both parties, the question, which has come up for consideration by this Court, is whether the petitioner is capable of paying the maintenance amount granted by the court below and whether the opposite party no.2 is entitled to any maintenance in view of subsection (4) of Section 125 of the Code. I have examined the evidences brought on record wherein the opposite party no.2 has clearly testified that she was subjected to physical and mental torture at the hands of this petitioner and her inlaws whereafter she decided to live separately. I have examined the evidences brought on record wherein the opposite party no.2 has clearly testified that she was subjected to physical and mental torture at the hands of this petitioner and her inlaws whereafter she decided to live separately. Indisputably, the opposite party no.2 has been living separately from the petitioner along with legitimate minor children for the last many years and despite having sufficient means, the petitioner had never taken care to maintain his wife and the minor children. Apparently on one hand, the petitioner has made allegation on the character of the opposite party no.2 and on the other hand, he had filed a suit for restitution of conjugal rights and this act of petitioner clearly shows his dubious character. It further appears from the order impugned that a copy of the pay-slip of the petitioner was filed in the court below showing the net payable salary of Rs.21,054/- per month. The father of the petitioner was also examined in the court below as O.P.W.1 and he has clearly testified that earlier he was working in Railway but now he has superannuated from his job. 8. In connection with the submission of the learned counsel for the petitioner that the amount of maintenance given by the court below was highly excessive, I feel necessary to advert to the decision in Ekradeshwari Vs. Homeshwar reported in AIR 1929 P.C. 128 wherein the Privy Council observed that maintenance depends upon a gathering together of all the facts and the situation, amount of free estate, the past life of the married parties and the family, on reasonable view of change of circumstances, possibly required in future regard having of course be given to the scale and mode of living and the age, habits and wants and class of life of the parties. 9. The Hon?ble Supreme Court in Savitaben Somabhai Vs. State of Gujarat and others; 2005(2) East Cr. C. 281 (S.C.) held as follows:- “The provision is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15 (3) reinforced by Article 39 of the Constitution of India. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.” 10. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.” 10. In the instant case as aforementioned, the family background of the petitioner is sound enough studded with the facts that the petitioner is also an able bodied man and is earning a handsome amount. On the other hand, the opposite party no.2 though was earlier working somewhere on a poor salary but left the job subsequently and three minor children are there and all of them are students of D.A.V. School, Dhanbad. Therefore, the monthly maintenance amount granted by the court below, in my opinion, in the circumstances discussed above, is not excessive particularly in view of these days of high inflation. 11. Having considered the above facts, it leaves no manner of doubt that the petitioner has sufficient means to maintain his wife and his three children. 12. So far as the power of this Court sitting in revision is concerned, the ratio decidendi which emerges out of the two cases Santosh (Smt.) Vs. Naresh Pal; (1998)8 SCC 447 and Parwati Ran Sahu Vs. Vishnu Sahu (2002) 10 SCC 510, on the power of the revisional court is that it is not open to the High Court in revision to re-examine the evidence for the purposes of arriving at a different conclusion and should not interfere and disturb the finding. 13. Thus in view of the above discussions particularly taking view of the ratio decided in the above cases Savitaben Somabhai (supra) and Ekradeshwari (supra), the court below has rightly allowed the maintenance. The quantum of amount is in no way excessive and the opposite party no.2 certainly had just grounds not to live with her husband and there is no error or illegality permeating the order impugned. 14. This revision application, being devoid of any merit is, hereby, dismissed.