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2020 DIGILAW 1115 (JHR)

Sanjay Kumar, S/o. Late Baleshwar Singh v. State of Jharkhand

2020-11-27

SHREE CHANDRASHEKHAR

body2020
ORDER : The petitioner has filed an affidavit stating that after the order passed by the learned Sessions Court he has been paying the maintenance amount to his wife and the minor daughter. Mr. Amit Kumar Choubey, the learned counsel for the opposite party nos. 2 and 3 has affirmed the same. 2. The petitioner-husband is aggrieved of the order dated 24.08.2016 passed in Misc. Case No. 145 of 2009 by which he has been directed to pay Rs. 7000/-per month each to his wife and the minor daughter from August 2016. 3. In the application under section 125 Cr.P.C. which was filed jointly by the wife and minor daughter of the petitioner, his wife has claimed maintenance of Rs.10,000/- per month. She has made various allegations of harassment and torture at the hands of her husband and demand of various household articles such as washing machine, air-conditioner and also a car by her husband. She has made allegation of illicit relationship of the petitioner with a co-worker at the office. According to his wife at the relevant time the petitioner was employed as Hindi Stenographer under the Railways and earning salary of Rs. 26,000/- per month. He has additional income from agricultural and homestead lands and he possesses a house. The petitioner in his show-cause reply has denied the allegation of harassment and torture levelled against him by his wife. He has admitted that he is employed under the Railways and O.P. No.2 is his legally-wedded wife. However, he has stated that his wife was found in objectionable and compromising situation with a neighbour, namely, Dinesh Singh and that was the reason for discord between the couple. He has stated that on 25.07.2009 when he came back home from market he found his wife, Dinesh Singh and the wife of Dinesh Singh were busy in discussion and when he came there they started assaulting him. They confined him in a room, however, on an information given to the police he was rescued and Dinesh Singh, Birendra Prasad and Binod Kumar Singh were arrested in connection to the First Information Report lodged by him. On 26.07.2009 his wife and the minor daughter left the matrimonial home with valuable documents, cash, ornaments etc. and, therefore, he was constrained to lodge a complaint case in the Court of Chief Judicial Magistrate, Hazaribag under section 380 of the Indian Penal Code. On 26.07.2009 his wife and the minor daughter left the matrimonial home with valuable documents, cash, ornaments etc. and, therefore, he was constrained to lodge a complaint case in the Court of Chief Judicial Magistrate, Hazaribag under section 380 of the Indian Penal Code. Controverting the claim of maintenance by his wife and the minor daughter the petitioner has set up a defence that on account of housing loan and L.I.C. premium he has incurred huge expenses and he has to maintain his old retired father and the unemployed brother. His wife has stated that the petitioner would abuse her and use filthy language and sometimes scold him for giving birth to a daughter. In the trial the applicant-wife has examined herself as a witness besides her brother and father in support of her claim for maintenance from her husband. In the Court she has stated that Rs.1,60,000/- was paid to her husband to satisfy his demand for dowry. In the Court she has reproduced her allegations made in the petition under section 125 Cr.P.C. and claimed that she has no source of independent income. Her father and brother have also spoken about demand of dowry including air-conditioner and car. Her father has deposed in the Court that he is supporting his daughter and grand-daughter by paying Rs.8000/- per month who are residing in a rented house. The petitioner in his evidence has stated that his wife is well-qualified and she has opened a beauty parlor at Hajipur and while so, she cannot claim that she has no source of income. Vikash Kumar who has been examined by the petitioner as a witness has stated in the Court that he knows both the parties and he has knowledge that the petitioner has taken L.I.C. policies in the name of his daughter and he has availed a housing loan etc. 4. Mr. Mayank Mohit Sinha, the learned counsel for the petitioner raised two grounds to challenge the order of maintenance passed in Misc. Case No.145 of 2009 : (i) the applicant-wife has failed to aver in her application under section 125 Cr.P.C. that she has no source of income and she is unable to maintain herself, and (ii) the quantum of maintenance in terms of the expenses by the petitioner is excessive and onerous to the petitioner. Case No.145 of 2009 : (i) the applicant-wife has failed to aver in her application under section 125 Cr.P.C. that she has no source of income and she is unable to maintain herself, and (ii) the quantum of maintenance in terms of the expenses by the petitioner is excessive and onerous to the petitioner. To fortify his submissions, the learned counsel for the petitioner has relied on the judgments in "Sunita Kachwaha v. Anil Kachwaha" (Criminal Appeal No. 2310 of 2014), "Sukhbeer Kaur v. Jatinder Singh @ Dimple" (CRM-M No. 8864 of 2016 - Punjab-Haryana High Court), "Bhushan Kumar Meen v. Mansi Meen @ Harpreet Kaur" (2010) 15 SCC 372 and Jasbir Kaur Sehgal (Smt.) v. District Judge Dehradun and Others" (1997) 7 SCC 7 . 5. The marriage of the petitioner was solemnized on 21.11.1997 and from the wedlock a daughter was born on 11.12.1999. It is not in dispute that the petitioner is employed under the Railways and at the time when he deposed in the Court he was earning Rs. 38,000/- per month as salary. There is a reference of a case filed against him under section 498A IPC on allegation of harassment and torture of his wife in connection to demand of dowry. The petitioner has also filed a case under section 380 IPC and admitted that his father-in-law was arrested. He has instituted Matrimonial Suit No. 125 of 2009 seeking a decree of divorce which was finally dismissed on contest. The nature of allegations and the litigation between the parties would indicate that the wife of the petitioner was unable to stay in her matrimonial home and she has a just excuse for not living in the company of her husband. 6. A married wife becomes entitled for maintenance from the date of her marriage and she is entitled to live a dignified life even after she is thrown away from her matrimonial home. In "Shamima Farooqui v. Shahid Khan" (2015) 5 SCC 705 the Hon'ble Supreme Court has observed that a wife is entitled to live a life in the similar manner as she would have lived in the house of her husband. The quantum of maintenance has to be adequate so that she can live with dignity and she cannot be compelled to become a destitute or a beggar. The quantum of maintenance has to be adequate so that she can live with dignity and she cannot be compelled to become a destitute or a beggar. It is also well-settled that some income of a wife is not a ground to deny her claim for maintenance under section 125 Cr.P.C. On the quantum of maintenance all that is required to be stated is that the expenses allegedly borne by the petitioner to the tune of Rs. 11000/- are his own property and plainly speaking these are not expenses rather assets of a person. Even so, the petitioner who is receiving salary around Rs.38000/- has sufficient income, excluding the expenses of Rs. 11000/- on account of housing loan and L.I.C. premium, to pay Rs. 14,000/- as maintenance for his wife and the minor daughter. 7. The object behind section 125 Cr.P.C. is to ensure that a wife, minor children and the parents do not suffer in penury. The social purpose is to prevent destitution. On the issue that the petitioner did not aver in her application that she is unable to maintain herself suffice would be to record that there is abundance of materials coming in the evidence of the witnesses examined by the wife of the petitioner that she has no independent source of income and she was unable to maintain herself. As noticed above her father has deposed in the Court that she is residing in a rented house and he is supporting his daughter by paying Rs.8000/- per month to her. Reliance has been placed on paragraph no. 9 in Sunita Kachwaha (supra) wherein the Hon'ble Supreme Court has observed that inability to maintain herself is the pre-condition for grant of maintenance to the wife who must positively aver and prove that she is unable to maintain herself. What has been over-looked by the learned counsel for the petitioner is the second part of paragraph no. 9 where the Hon'ble Supreme Court has observed that if the wife states that she has great hardship in maintaining herself and the daughters while her husband's economic condition is quite good the wife would be entitled to maintenance. The judgment in Sukhbeer Kaur (supra) proceeds on the fact that the husband has placed materials to show that the wife had earnings. The judgment in Sukhbeer Kaur (supra) proceeds on the fact that the husband has placed materials to show that the wife had earnings. The order passed in Bhushan Kumar Meen (supra) which was a case of interim maintenance is based on an assumption that a wife who possesses qualifications in future may have sufficient income to maintain herself. The judgment in Jasbir Kaur Sehgal (supra) which involved a discussion on section 24 of the Hindu Marriage Act and sections 18, 20 and 23 of the Hindu Adoptions and Maintenance Act 1956 says that no set formula can be laid for fixing the amount of maintenance and in the very nature of things the quantum of maintenance would depend on the facts and circumstances of each case. 8. Lastly I would observe that the petitioner has failed to lead evidence to controvert the claim of his wife for maintenance and as observed in "Manish Jain v. Akanksha Jain" (2017) 15 SCC 801 it is no answers to a claim of maintenance that the wife is educated and can support herself. The petitioner has sufficient income to maintain himself, his wife, minor daughter and his father though the father who was in service would have received pensionary benefits. There is no statutory or pious duty on a brother to support an unemployed brother, and, that too, ignoring his wife and the minor daughter. 9. In the aforesaid facts and keeping in mind the limitations of revisional jurisdiction [refer, "Deb Narayan Halder v. Anushree Halder" (2003) 11 SCC 303 ], I am not inclined to interfere in this matter and, accordingly, Criminal Revision No. 1434 of 2016 is dismissed.