Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 650 (JK)

Harpreet Singh v. Sardarni Davinder Kour

2018-08-24

SANJAY KUMAR GUPTA

body2018
JUDGMENT : Through the medium of instant Criminal Miscellaneous Petition u/s 561-A Cr.P.C, the petitioner seeks quashment of order dated 26.07.2018 passed by the learned Principal Sessions Judge, Kathua whereby the Revision Petition filed by the petitioner has been dismissed by upholding the order dated 20.01.2018 passed by the learned Sub-Judge (Special Mobile Magistrate), Kathua. 2. Petitioner, in the memo of petition, has briefly stated that he is serving as a Constable in 121 Battalion CRPF and presently posted at Kot Bhalwal Jammu. The marriage of the petitioner was solemnized on 24.10.2012 with respondent No.1 according to Sikh rites and customs at village Chak Drabkhan. Out of the wedlock, one male child (respondent No.2) was born on 09.01.2014. The relation between the parties remained cordial for some time. Thereafter, respondent No.1 started torturing the petitioner and his family members on one pretext or the other. Even she-respondent No.1 used abusive language, tried to harass the family members of the petitioner in front of relatives and sometimes in front of the neighbourers also. It is further stated that she-respondent No.1 used to neglect the petitioner and was not discharging her matrimonial duties/obligations and remained in her parental home most of the time. The respondents without any sufficient cause and reasons, withdrawn herself from the society of the petitioner. The petitioner even tried to take the respondents at the place of his posting but she-respondent No.1 openly refused to accompany the petitioner and threatened him she will not reside with the petitioner at his place of duty/posting. It is further contended the respondents have filed the petition under Section 488 of Code of Criminal Procedure for grant of maintenance. The learned Sub-Judge, Special Mobile Magistrate, Kathua passed an order dated 20.01.2018 by which the court has granted Rs.10,000/- maintenance to the respondents. The petitioner had filed a revision petition before the learned Sessions Judge, Kathua against the aforesaid order on the ground that the respondent no.1 without any reasonable cause and reasons is not residing with the petitioner and withdrawn herself from the society of the petitioner and also made a statement before the court that she will not reside with the petitioner and will not perform her matrimonial obligations as she has categorically stated that living with the petitioner is not tenable. The court of learned Sessions Judge, Kathua vide order dated 26.07.2018 dismissed the Revision Petition on the ground that it is the duty/obligation of the husband to maintain his wife and children so long he is capable of earning. The court has held that the order passed by the trial court does not call for any interference much less modification with regard to the payment of monthly maintenance of Rs.7000/- to respondent No.1 and Rs.3000/-to respondent No.2 while the trial court has also granted Rs.7000/- to respondent No.1 and Rs.3000/- to respondent No.2. Hence the present writ petition. 3. Feeling aggrieved of the orders dated 26.07.2018 and 20.01.2018, the petitioner challenges the same on the following grounds: (i) That the orders are against law and facts, so the same are not sustainable. (ii) That marriage between the parties was solemnized on 24.10.2012 and out of wedlock one child was born on 09.01.2014 who is respondent No.2.The Hon’ble Court has not appreciated that the respondent No.1 has not discharged her matrimonial obligations and withdrawn herself from performing the matrimonial obligations without any sufficient cause and reasons. There was no cause projected by the respondent No.1 and the Hon’ble Court has not appreciated that petitioner was remained posted outside as the petitioner is serving in CRPF. The petitioner even requested the respondents to accompany him at his place where petitioner was posted and also requested that petitioner will allotted separate quarter but the respondent No.1 without any sufficient cause did not acceded to the request of the petitioner as respondent No.1 has no intention to live with the petitioner and to perform her matrimonial obligations as she used to reside in her parental house. (iii) That the Hon’ble Court has not appreciated that the petitioner never refused to maintain the respondents. It is the respondents who are not ready to reside with the petitioner and left the company of the petitioner on her own and started residing in her parental house without any reasonable cause and reasons. Even the petitioner has given the offer to respondent No.1 to reside with him and the petitioner is ready to keep the respondents in rented house before the Hon’ble trial court but it is the respondent no.1 who refused to live with the petitioner. The Hon’ble Court without appreciating the provisions of law rejected the Revision Petition. So, the orders are not sustainable. The Hon’ble Court without appreciating the provisions of law rejected the Revision Petition. So, the orders are not sustainable. (iv) That the Hon’ble Court has not appreciated that the petition under Section 488 CrPC has been filed on the grounds which are not sustainable in the eyes of law as the respondents have taken a ground that the name of the respondent No.1 was not entered in the service record of the petitioner as his wife while the petitioner has already given the particulars of his marriage in the office and it is the duty of the official authorities to enter the name of the respondent No.1 as wife in the column of family in the official record of the petitioner and to issue Part II Order. Moreover, this ground is not sustainable. (v) That the Hon’ble Court has not appreciated that respondent No.1 without any sufficient reasons refused to live with the petitioner. Under the provisions of Section 488 CrPC Sub-Section (4), wife is not entitled to receive the maintenance, if without any reasons, she refuses to live with her husband. In the present case, no reason much less sufficient reasons have been assigned by the respondents for her refusal to live with the petitioner. (vi) That the Hon’ble Court has also not appreciated that under the provisions of law if the husband offer to maintain his wife on the condition of her living with him, the Magistrate has to pass the order after appreciating the offer and in the present case, the petitioner has even offered the respondents that he is ready to keep the respondent No.1 even in the rented house where the petitioner is posted but the respondent No.1 refused to accompany the petitioner. (vii) That the petitioner is serving as Constable and the court has granted maintenance which is excessive and exorbitant. The petitioner has a liability of old parents and petitioner has to look after his parents also. The Hon’ble Court without appreciating the liabilities granted the maintenance of Rs.10,000/- to the respondents. (vii) That the petitioner is serving as Constable and the court has granted maintenance which is excessive and exorbitant. The petitioner has a liability of old parents and petitioner has to look after his parents also. The Hon’ble Court without appreciating the liabilities granted the maintenance of Rs.10,000/- to the respondents. The object of Section 488 of CrPC is that if the husband refuses and neglect to maintain the wife and the children, then an order has to be passed against the husband to perform his legal obligation to maintain wife and children but in the present case, it is clear from the record and even evidence produced by the respondent No.1 that petitioner never refused to maintain the respondents. The respondent No.1 has levelled allegations against the family members and not against the petitioner while the petitioner never kept himself away from his liability to maintain the respondents. The Hon’ble Court without appreciating the provisions of law dismissed the Revision Petition. So the orders of both the courts are not sustainable. 4. I have considered the submissions of the petitioner. From the perusal of the memo of petition, it is evident that the petitioner has taken a substantial ground that the revisional court as well as the trial court have not appreciated the correct position of law that the maintenance to wife cannot be granted when she wilfully refused to stay with the husband; further if the husband offer to maintain his wife on the condition of her living with him and in case wife refused to live with him, the Magistrate shall not grant maintenance to the wife. 5. From perusal of the order dated 20.01.2018 passed by the trial court, it is evident that the respondents have filed the petition under Section 488 CrPC for maintenance on the ground that their marriage was solemnized on 24th October 2012 according to Sikh custom prevailing their society at Village Chak Drab Khan. In the month of May 2013 when she was taken in the house of respondent’s sister house at Gadigarh, Jammu, he demanded her golden ornaments for his personal use and on her refusal he became aggressive and started abusing and beating. Her husband forcefully snatched her gold ornaments. In the presence of his sister he always threatened for the desertion and finally she was removed from her matrimonial house. Her husband forcefully snatched her gold ornaments. In the presence of his sister he always threatened for the desertion and finally she was removed from her matrimonial house. Her husband never contacted with her during his posting at Srinagar. She took shelter in her parents’ house. On 17.09.2013 due to intervention of certain relatives and respectable persons she joined with respondent at her matrimonial house. On 09.01.2014 she gave birth to petitioner No.2 in a private hospital at Kathua. Thereafter, her husband was posted at Hyderabad. In his absence father-in-law, mother-in-law and sister-in-law started teasing and putting remarks against her. She was treated both physically and mentally; neither she nor her minor son was treated properly. She was turned out from matrimonial house on 11.12.2014. She has no source of income, whereas the petitioner herein is serving in Central Reserve Police force (CRPF) and getting salary of Rs.30,000/- and having agriculture income of Rs.5,000/-also. The learned Sub Judge, Special Mobile Magistrate, Kathua allowed the petition on 20.01.2018 and directed the petitioner herein to pay monthly maintenance of Rs.10,000/- (Rs.7,000/- to wife and Rs.3,000/- to child). The petitioner herein filed the revision petition before the Sessions Judge, Kathua, who upheld the order of the learned Sub Judge, Special Mobile Magistrate, Kathua and dismissed the writ petition on 26.07.2018. 6. I have carefully gone through the record as well as the evidence recorded in trial Court. From the perusal of the statements of the claimant as well as the respondent, it is evident that there is no evidence on record from where it can be inferred that the petitioner has offered to maintain to his wife on the condition of her living with him and she refused to live with him, but otherwise there is sufficient evidence on record that the respondent-wife was treated with cruelty and deserted by her husband. Further finding of facts cannot be disturbed, while exercising the power under section 561-A Cr.P.C , by this court. 7. In view of the above, I find no ground to interfere with the order of learned Pr. Sessions Judge Kathua. Therefore, the instant petition is, accordingly, dismissed.