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2019 DIGILAW 321 (JHR)

Pankaj Kumar, S/o Sri Janardhan Pd. Singh v. State of Jharkhand

2019-01-31

SHREE CHANDRASHEKHAR

body2019
ORDER : 1. This petition when it was filed was labelled as writ petition (criminal) however, subsequently by an order of the Court the nomenclature has been corrected. Now, it is Criminal Revision No.1651 of 2018. 2. Initially, the petitioner challenged the orders dated 28.01.2016 and 13.07.2017 passed under section 125 Cr.P.C, however, during pendency of this criminal revision petition judgment in Original Maintenance Case No.74 of 2011 came and accordingly, the petitioner filed an application for amendment vide I.A. No.3693 of 2018 seeking permission to challenge the judgment dated 23.03.2018 passed in Original Maintenance Case No.74 of 2011. This application has been allowed by an order dated 23.10.2018. 3. Two-fold contentions have been raised by the petitioner namely; (i) the impugned judgment dated 23.03.2018 passed in Original Maintenance Case No.74 of 2011 does not deal with the comparative income of the parties, and (ii) in the judgment dated 23.03.2018 the Principal Judge, Family Court has not held that the respondent-wife does not have sufficient income to maintain herself. 4. Briefly stated, on an application of the respondent under section 125 Cr.P.C, the petitioner has been directed to pay Rs.15,000/- per month to the applicant. In the proceeding of Original Maintenance Case No.74 of 2011, the respondent-wife has examined two witnesses; she has examined herself as PW-2, and the petitioner has examined three witnesses; he has examined himself as OPW-1. Marriage between the parties is not denied, though the petitioner has alleged adultery and cheating by his wife. In the criminal case instituted by him cognizance of the offence has been taken by the Court and in the connected quash-petition the respondent-wife has challenged the order by which the discharge-petition filed by her has been dismissed. It is stated that the discharge-petition filed by the alleged adulterator has also been dismissed; he is also before the Court in Cr.M.P.No.160 of 2012. The judgment dated 23.03.2018 notices that the petitioner has left the practice as doctor and now he is a practicing lawyer under a senior counsel in the Supreme Court. In paragraph no.3 of the judgment stand taken by the petitioner that his wife is drawing salary of Rs.1,38,000/- per month and she has several bank-accounts and fixed deposits besides gold items and jewelries etc. and the petitioner who was opposite-party in the said case according to his wife is having income of Rs.90,000/- are recorded. In paragraph no.3 of the judgment stand taken by the petitioner that his wife is drawing salary of Rs.1,38,000/- per month and she has several bank-accounts and fixed deposits besides gold items and jewelries etc. and the petitioner who was opposite-party in the said case according to his wife is having income of Rs.90,000/- are recorded. Admittedly, the stand taken by his wife on the petitioner’s income pertains to the period when he was practicing as a Dentist. This fact may not be relevant for the present purpose. What needs to be recorded is that the judgment in Original Maintenance Case No.74 of 2011 runs into 11 pages, but sadly, it does not deal with the present income of the parties. The entire judgment is devoted to matrimonial dispute between the parties. In “Sunita Kachwaha & Ors. vs. Anil Kachwaha” (2014) 16 SCC 715 , it has been held that in a proceeding under section 125 Cr.P.C it is not necessary for the court to ascertain as to who was in wrong and the minute details of matrimonial dispute between the husband and wife need not be gone into. 5. A bare reading of section 125 Cr.PC would disclose that inability of a spouse to maintain herself/himself is a pre-condition for grant of maintenance. Opening words of section 125 Cr.PC; if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, makes it clear that before an order under section 125 Cr.PC is made two conditions must be satisfied; (i) the opposite-party has sufficient means still he has neglected his/her spouse, and (ii) the wife is unable to maintain herself. The Principal Family Court Judge in the judgment dated 23.03.2018 has not held that the applicant-wife is unable to maintain herself. The impugned judgment does not reflect on the income of the respondent-wife as claimed by the petitioner. 6. Viwed thus and for the reasons indicated hereinabove, I find that the judgment dated 23.03.2018 suffers from serious infirmities in law and, accordingly, it is set-aside. The interim order of maintenance dated 28.01.2016 and 13.07.2017 are consequently set-aside. 7. In the result, Cr. Rev. No.1651 of 2018 is allowed.