Research › Search › Judgment

Jharkhand High Court · body

2021 DIGILAW 135 (JHR)

Jotish @ Jyotish Mandal S/o Nageshwar Mandal v. Neelam Devi W/o Jotice Mandal

2021-01-29

SHREE CHANDRASHEKHAR

body2021
JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Neelam Devi and Gaurav Kumar, her minor son, filed an application under section 125 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) seeking maintenance of Rs. 10,000/- per month each for them. On their application, Maintenance Case No. 84 of 2012 was instituted and the parties laid oral and documentary evidences in support of their stand. By order dated 01.10.2016, the learned Principal Judge, Family Court, Godda has awarded maintenance of Rs. 3000/- each per month for both the applicants. 2. The husband has assailed legality of the order dated 01.10.2016 primarily on the ground that his wife was living in adultery and he is not biological father of the applicant no. 2. 3. Section 125 Cr.P.C. has been enacted as a measure of social justice to protect the married women, minor children and old parents. The object is to prevent vagrancy and destitution and it provides a speedy remedy to the deserted wife and minor children. In Vimla (K) vs. Veeraswamy (K), (1991) 2 SCC 375 the Hon'ble Supreme Court has observed that section 125 Cr.P.C. is meant to achieve a social purpose. 4. In the judgment in Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, (1999) 7 SCC 675 the Hon'ble Supreme Court has observed, thus: “9. It is to be remembered that the order passed in an application under section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.......” 5. The applicant no. 1 has stated in her application under section 125 Cr.P.C. that her marriage was solemnized with Jyotish Mandal according to Hindu custom and from the wedlock a son who was named Gaurav Kumar was born. After birth of her son her husband and his family members started demanding additional dowry of 2 bhar gold, motorcycle and cash of Rs. 1,11,000/- and when she expressed poor financial condition of her father they would inflict various acts of torture upon her. Her husband gave a false information to her father that she was not well and when her father came to visit her husband and his family members started demanding dowry from him. They assaulted her father who was saved by the neighbours. Her husband gave a false information to her father that she was not well and when her father came to visit her husband and his family members started demanding dowry from him. They assaulted her father who was saved by the neighbours. She also suffered injuries at the hands of her husband and the other family members and both of them were admitted at Sadar Hospital, Godda. She filed a complaint with the police on 13.05.2011 and on the basis of her farebeyan Meharma P.S. Case No. 78 of 2011 was lodged under sections 341, 342, 323, 498-A/34 of the Indian Penal Code and section 3/4 of the Dowry Prohibitions Act. The husband has however denied the allegations of demand of dowry and harassment to the applicant no. 1. He has alleged that father of the applicant no. 1 was Anuj Mandal and this fact was admitted by his wife before the Panches. He has produced a copy of Panchnama which was marked as Ext.K. The applicants have examined 3 witnesses in support of their claim for maintenance from Jyotish Mandal. The applicant no. 1 has examined herself as PW-1 and her mother and father were PW-2 and PW-3 respectively. They have stated about marriage of the applicant no. 1 with Jyotish Mandal and birth of Gaurav Kumar from their wedlock. It has come on record that Gaurav Kumar was studying at J.P. Mission School, Godda and PW-3 has stated that on his study the applicant no. 1 was spending about Rs. 10,000/-. 6. Besides himself the husband has examined 4 witnesses to establish that his wife was not ready to live with him; she was living in adultery and she had adulterous relationship with Anuj Mandal with whom she gave birth to a son. OPW-1 is the person who was present in the Panchayati but in his cross-examination she has stated that she was not aware of the dispute for which Panchayati was convened. She has admitted that the applicant no. 1 was living at her parental home since last 5 years and her husband was not providing maintenance to her. She has further admitted that she does not know Anuj Mandal. OPW-2 has also stated that the applicant no. 1 was not ready to live with her husband and she accepted that Anuj Mandal has fathered her son. In his cross-examination, OPW-2 has admitted that the applicant no. She has further admitted that she does not know Anuj Mandal. OPW-2 has also stated that the applicant no. 1 was not ready to live with her husband and she accepted that Anuj Mandal has fathered her son. In his cross-examination, OPW-2 has admitted that the applicant no. 1 made a grievance in the Panchayati that her husband was not providing food and clothes to her. OPW-3 is a resident of village Chamba who claimed that he was present when a Panchayati was convened. OPW-4 is a co-villager who has also deposed that to resolve the dispute between husband and wife a Panchayati was convened on 09.05.2011 and a Panchnama was prepared. He has stated that the applicant no. 1 made her intentions clear before the Panches that she did not want to live with her husband. Jyotish Mandal who has examined himself as OPW-5 has reiterated his stand that Gaurav Kumar is not his son and his wife did admit in the Panchayati that Gaurav Kumar is son of Anuj Mandal who is a resident of village Saraiya. The learned Family Court Judge has found that the witnesses produced by the husband have stated that there was a Panchayati in which the wife declined to live with the opposite party but he was desirous to keep the wife. 7. The learned Family Court Judge has finally held as under: “Heard, learned counsel for the parties, perused the record. I find from the evidence of both the parties that petitioner is the legally married wife of the O.P. and from the evidence adduced on behalf of the petitioner, it appears that she has got a child i.e. petitioner no. 2 with the wedlock of O.P. but same has been denied by the witnesses adduced on behalf of the O.P. From the evidence adduced on behalf of the petitioner. I find that O.P. is doing work of mason and he has got two shops one kirana shop and another sweets shop at Barahat and he has got more than 4 bighas land though from evidence adduced on behalf of the O.P. it appears that he is doing only labour and he has got 1.5 katha land. From the record it appears vide dated 21.11.2015. O.P was directed to pay of Rs. 2,000/- (two thousand) each to the petitioner no. From the record it appears vide dated 21.11.2015. O.P was directed to pay of Rs. 2,000/- (two thousand) each to the petitioner no. 1 and 2 as interim maintenance but he has not paid a single coin to the petitioner and after closure of the evidence of both the parties on 02.05.2016. O.P. has filed a petition for paternity test of petitioner no. 2 i.e. D.N.A. test of petitioners and himself but same petition was rejected since he has disobey the direction of this Court to pay first Rs. 35 thousand dues as an interim maintenance of the petitioners and no argument was done on behalf of the O.P. even after providing two dates for the same. Hence considering the evidence as a whole available on record the O.P. Jyotish Mandal S/o Sri. Nageshwar Mandal of Mouza-Champa, Post-Kaswa, PS-Meharma subdivision and District Godda is hereby directed to pay of Rs. 3,000- (three thousand) per month to the each petitioner i.e. petitioner no. 1 Neelam Devi W/o Jyotish Mandal and petitioner no. 2 Gaurav Kumar S/o Jyotish Mandal from this month and same will be paid by 15th of the subsequent month. The maintenance of the petitioner no. 2 will be paid to the petitioner no. 1 till the attending the age of majority.” 8. The proceeding under section 125 Cr.P.C. is primarily civil in nature. It is a summary proceeding and during the trial strict rules of evidence are not applied by the Courts. From the materials on record it is gathered that the wife of the petitioner has made allegations of harassment, torture and demand of dowry and she has filed a criminal case. The Panchnama produced by the husband the contents of which were not admitted by the wife cannot decide paternity of the son. Anuj Mandal was not a party in the proceeding of Maintenance Case No. 84 of 2012 nor was he a witness and he was not present in the Panchayati. The allegation of adultery had no foundation and the wife has asserted that her son was born from the wedlock with Jyotish Mandal. 9. In Dwarika Prasad Satpathy the Hon'ble Supreme Court has held as under: “....In our view, validity of the marriage for the purpose of summary proceedings under section 125 Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. 9. In Dwarika Prasad Satpathy the Hon'ble Supreme Court has held as under: “....In our view, validity of the marriage for the purpose of summary proceedings under section 125 Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 IPC. If the claimant in proceedings under section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption....” 10. On income of the husband, the evidence is not consistent but it is not that he has no income at all but his wife has no independent source of income was established in the Court. In my opinion, quantum of maintenance is quite reasonable. 11. On the issue of quantum of maintenance, I would refer the judgment in Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705 wherein the Hon'ble Supreme Court has observed as under: “14.......It can never be forgotten that the inherent and fundamental principle behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C. it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr.P.C. unless disqualified, is an absolute right.” 12. In view of the aforesaid discussions and keeping in mind limitations of the revisional jurisdiction [Refer: Deb Narayan Halder vs. Smt. Anushree Halder, (2003) 11 SCC 303 ]. I am not inclined to interfere in this matter and accordingly, Criminal Revision No. 1648 of 2016 is dismissed. 13. Let a copy of this order be transmitted to the Court concerned through Fax.