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2020 DIGILAW 252 (JHR)

Gaina Kisku S/o Late Rakhal Kisku v. State of Jharkhand

2020-02-07

SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The petitioner has challenged the order dated 23.02.2016 passed in Criminal Misc. Case No. 19 of 2014 by which he has been directed to pay Rs. 8,000/- per month to O.P. No. 2 and Rs. 2,000/- per month to O.P. No. 3 for their maintenance. 2. In the application under section 125 of the Code of Criminal Procedure the opposite party no. 2 has claimed that she is legally married wife of the petitioner and their marriage was solemnized on 22.10.2013 at Padarkola according to Hindu Santhal customs and from the wedlock a male child was born in the year, 2004. At the time when this application was filed son of the petitioner was aged about 10 years. The petitioner is Assistant Teacher in a government school and he was receiving salary of Rs. 32,000/- per month at that time. It is stated that O.P. No. 2 is para-teacher and she is receiving salary of Rs. 4,000/- per month. She has claimed maintenance of Rs. 15,000/- per month. 3. In Criminal Misc. Case No. 19 of 2014, the petitioner’s wife has examined four witnesses and produced a copy of salary slip of the petitioner and a copy of Advocate’s notice under section 80 C.P.C. The petitioner has examined himself as PW-1. On the basis of the materials laid before him the learned Principal Judge, Family Court, Dumka has awarded maintenance to O.P. Nos. 2 and 3. 4. The witnesses examined by the petitioner’s wife have spoken about harassment and demand of Rs. 50,000/- by the petitioner. They have affirmed marriage of the petitioner with O.P. No. 2 and birth of Deepak Kisku-O.P. No. 3 from their wedlock. The petitioner has denied his marriage with O.P. No. 2 and he has asserted that he was married to Muni Murmu and from the said wedlock he has two children. 5. The learned Principal Judge, Family Court, Dumka has held as under: “12. On careful scrutiny of the evidence available on record, I find that PW-1 is the petitioner herself, PW-2 is mother of informant and PW-3 is cousin sister of petitioner and PW-4 is an independent witness have fully proved the petitioner’s case. Petitioner has categorically proved case of willful neglect of the O.P. she has also proved that she has no source of her maintenance. Petitioner has categorically proved case of willful neglect of the O.P. she has also proved that she has no source of her maintenance. The opposite party has willfully neglect to maintain either the petitioner or his child as a result the son of the petitioner could not get proper education in her small salary. The opposite party on the other hand admitted the case of the petitioner and stated in Para-7 of her deposition that when petitioner was studying he had paid money in her study and also maintain entire expenses of her teacher training. Further in Para-9 of her deposition admitted that if petitioner wants his help for the purpose of education of her son, he will ready to help her. It is also proved that opposite party did not pay any maintenance to the petitioner despite convening of PANCHAYAT. Witness also admitted that at present petitioner is suffering from illness. Marriage of petitioner Sunita Tudu with the opposite party Gaina Kisku is admitted by the witnesses of the petitioner and it is also admitted that petitioner along with her son Deepak Kisku are living separate from the opposite party since 12.12.2006. The petitioner has been able to prove that the opposite party has sound financial condition. She has claimed Rs. 15,000/- per month for herself and her minor son. In the facts and circumstances of the case, I find that Rs. 8,000/- per month to the petitioner no. 1 and Rs. 2,000/- per month to the petitioner no. 2 would be just and adequate amount of maintenance.” 6. In a proceeding under section 125 of the Code of Criminal Procedure, strict proof of marriage and proof of performance of essential rituals of marriage are not necessary to be established. The test applied in a proceeding under section 125 of the Code of Criminal Procedure and a regular criminal case is different [Refer: Kamala vs. Mohan Kumar, 2018 SCC Online SC 2121]. 7. The order passed by the learned Principal Judge, Family Court, Dumka is based on due consideration of the materials laid before him. This criminal revision petition has been filed with delay of 171 days. 8. Seeking condonation of delay, the petitioner has filed I.A. No. 1403 of 2017. 7. The order passed by the learned Principal Judge, Family Court, Dumka is based on due consideration of the materials laid before him. This criminal revision petition has been filed with delay of 171 days. 8. Seeking condonation of delay, the petitioner has filed I.A. No. 1403 of 2017. In this application the petitioner has stated that after receiving notice by the court below for execution he came to his counsel who advised him to file criminal revision petition in the High Court and thereafter he has preferred this petition. 9. This application is bereft of foundational facts. The petitioner has failed to aver when he has obtained a copy of the order dated 23.02.2016, the date when he came to know about the order, the date when he has received summons and like other facts. This application lacks bona-fide. The petitioner has failed to show sufficient cause for condonation of delay of 171 days in filing this criminal revision petition. 10. Accordingly, I.A. No. 1403 of 2017 is dismissed. 11. Consequently, Criminal Revision No. 1480 of 2016 is dismissed. 12. Let a copy of the order be transmitted to the court concerned through FAX.