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Jharkhand High Court · body

2019 DIGILAW 2042 (JHR)

Shantanu Suman Mishra v. Suman Pandey

2019-12-17

ANANDA SEN

body2019
JUDGMENT : 1. In this revision, petitioner has challenged the final order passed in proceeding under Section 125 Cr.P.C by the Additional Principal Judge, Additional Family Court, Dhanbad in Original Maintenance Case No. 122 of 2016. 2. The wife filed an application under Section 125 Cr.P.C claiming maintenance on the ground that her husband who is the petitioner herein has failed to maintain her. The wife claimed that her husband is not maintaining her. Their marriage was solemnized on 25.4.2008 and she went to her in-laws house, stayed there till 2015 where she was subjected to torture, forcing her to leave the house. She stated that her husband is engaged in a marketing job, who earns Rs. 40,000/- per month besides Rs. 1,00,000/- per month from rent, thus, she claimed Rs. 20,000/- as maintenance. 3. Petitioner did not appear before the court and thus case was fixed ex-parte. Later on, petitioner appeared, filed show-cause and submitted that he is ready and willing to keep his wife with full dignity but inspite of availing sufficient opportunity he did not appear before the court, thus his prayer for recall of the ex-parte order was also dismissed. 4. Two witnesses were examined on behalf of the complainant. P.W.1 is the complainant herself and P.W.2 is the father of the complainant. Complainant stated that due to the torture she left her in-laws house. Her husband is engaged in marketing job and is earning Rs. 40,000/- per month and Rs.1,00,000/- from rent, thus she claimed Rs. 20,000/- as maintenance. Father who is P.W.2 stated that amount of Rs. 20,000-25,000/- be paid as maintenance to her daughter. 5. The court thereafter in the findings at paragraph No.15 disbelieved the statement of the wife that the husband is earning Rs. 1,00,000/- from rent on the ground that there are no evidence to that effect but held that the husband is earning Rs. 40,000/- per month, thus the wife is entitled to get an amount of Rs. 8000/- per month as maintenance and Rs. 3000/- as lump-sum as litigation cost. 6. Challenging the aforesaid order, counsel for the petitioner submits that there is no reason assigned in the aforesaid order. He submits that the court has assessed the quantum of compensation but the grounds of such assessment has not been mentioned. He submits that the assessment of compensation amount of Rs. 8000/- has been allowed without any basis. 6. Challenging the aforesaid order, counsel for the petitioner submits that there is no reason assigned in the aforesaid order. He submits that the court has assessed the quantum of compensation but the grounds of such assessment has not been mentioned. He submits that the assessment of compensation amount of Rs. 8000/- has been allowed without any basis. He submits that findings at paragraph no.15 of the court below is itself contradictory and thus needs to be set aside. 7. Counsel appearing on behalf of wife submits that admittedly petitioner failed to maintain the wife and thus the amount of Rs. 8000/- was assessed as maintenance and there is no error in the impugned order. 8. After hearing the parties and after going through the records, I find that the petition is filed by the wife in Form No.4. She claims that she was tortured by her husband and was not maintained. She claimed that the income of her husband is Rs. 40,000/- per month from job, from rent Rs. 80,000/- and from agricultural income Rs. 2,00,000/- per annum. While deciding the quantum of maintenance, the court below at paragraph no.15 of the judgment, disbelieved the contention of the wife to the extent that husband is getting Rs. 1,00,000/- per month from rent on the ground that there is no evidence to that effect led by the wife. The court held that there is no evidence in respect of how many person have been inducted as tenant and what was the monthly rent from them has not been stated by the wife. Thus the court disbelieved the aforesaid fact but on presumption that the earning of the petitioner is Rs. 40,000/- assessed maintenance amount to be Rs. 8000/-. 9. There can be no presumption. Admittedly in this case there is no documents or any evidence to suggest that husband is getting Rs. 40,000/- per month. This statement was merely a bald statement given by the wife which has been presumed to be corrected by the court. Even the name of the employer has not been disclosed. There is no scope of presumption. The court has to give definite finding based on evidence on record and cannot presume the quantum of salary. 10. Thus, court below has committed an error in presuming the salary of the petitioner Rs. 40,000/- when admittedly wife has not brought any evidence to that effect. There is no scope of presumption. The court has to give definite finding based on evidence on record and cannot presume the quantum of salary. 10. Thus, court below has committed an error in presuming the salary of the petitioner Rs. 40,000/- when admittedly wife has not brought any evidence to that effect. The basis is presumption of income of Rs. 40,000/- per month without any evidence cannot be a basis of fixing the amount of maintenance. Thus, I find that the court has wrongly directed himself while deciding the aforesaid case. Every assessment needs to be backed up by reasons and in this case, I find that reasoning is not there. Thus, I set aside the impugned order dated 11.7.2017 passed in Original Maintenance Case No. 122 of 2016 by Additional Principal Judge, Additional Family Court, Dhanbad. 11. Accordingly, the Criminal Revision application stands allowed. 12. The entire case is remitted to the court below with a direction to pass afresh and detailed reasoned order assessing the amount of maintenance.