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2022 DIGILAW 869 (JHR)

Amar Kant Jha, S/o. Late Maheshwar Jha v. Karuna Devi, W/o. Sri Amar Kant Jha

2022-07-15

SHREE CHANDRASHEKHAR

body2022
JUDGMENT : The petitioner who is the husband of Smt. Karuna Devi is aggrieved of the order dated 30th May 2016 passed in Maintenance Case No. 145 of 2009. 2. Maintenance Case No. 145 of 2009 which was instituted by Smt. Karuna Devi (hereinafter referred to as the applicant) claiming Rs.8000/-per month for her maintenance was partly allowed to the extent that the Principal Judge, Family Court, Godda awarded Rs. 6000/-per month for her monthly maintenance. 3. The petitioner has taken a stand that about 4 1/2 bighas of lands are being cultivated by the applicant and she has sufficient income from the said lands to maintain herself. He has further stated on oath that he has been paying Rs.1500/-per month to support his wife. 4. The applicant claimed in her application under section 125 of the Code of Criminal Procedure that her husband solemnized second marriage in the year 1974 and thereafter abandoned her, due to which she has been living life of a destitute. In the proceeding of Maintenance Case No. 145 of 2009, the applicant examined three witnesses – she examined herself as PW1. Her sister Anupma Devi and Nityanand Jha came in the witness box to corroborate her statement in the Court that the husband of the applicant has sufficient income to provide maintenance to his wife but has refused to maintain her. 5. The petitioner examined one Amresh Kumar as OPW1 to set up a plea that the applicant on her own was staying separately from the petitioner along with their son. He reiterated that from cultivation of 4 1/2 bighas lands about 35-40 maunds paddy and 20-25 maunds wheat are produced every year, the sale proceeds of which are sufficient for his wife to maintain herself a dignified life. 6. The Principal Judge, Family Court, Godda on appreciation of the materials on record has recorded the following findings : “From careful scrutiny and analysis of the evidence of this witness, I find that this witness in his examination-in-chief has stated that petitioner is living at matrimonial home at Reri she has got one son. O.P has got 4 1/2 bigha land at vill. Reri and all crops are being kept by the petitioner. O.P has got 4 1/2 bigha land at vill. Reri and all crops are being kept by the petitioner. This witness vide cross-examination has stated vide para-12 he has stated that Karuna Devi is the wife of the O.P and vide para-19 & 20 he has stated that O.P is retired teacher and he is getting of Rs.15-16 thousand per month as a pension. Vide para-21 to 23 he has stated that O.P has solemnized another marriage and from her he has got three sons and all are in Govt. service. O.P is living in his own house at Godda. 11. On behalf of the petitioner pension paper of the O.P has been filed which shows that on April, 2012 O.P was getting per month of Rs.12,886/-. On behalf of the O.P pension paper has also filed from which shows that in the month of February, 2016 O.P received pension of Rs.20,201/-. Therefore having considered the evidence either oral or documentary adduced on behalf of the parties, I find that petitioner is legally wedded wife of the O.P and she has been deserted by the O.P about 42 years ago and solemnized another marriage with Prema Devi. From the documents filed by the O.P himself shows that in the month of February, 2016, he received as a pension of Rs.20,201/-. Therefore, considering the facts and circumstances, O.P Amar Kant Jha is hereby directed to pay Rs.6000/-per month to the petitioner Karuna Devi from this month and same will be paid by 15th of the subsequent month. O.P is also directed to pay of Rs.40,000/- as cost of litigation which will be paid in eight equal installment by the 15th of the subsequent month. Accordingly the petition filed on behalf of the petitioner for maintenance is hereby allowed.” 7. Mr. Purnendu Kumar Jha, the learned counsel for the petitioner would submit that the Principal Judge, Family Court committed serious error in law in awarding maintenance to the wife of the petitioner without recording a finding that his wife was unable to maintain herself. 8. Section 125 of the Code of Criminal Procedure contains salutary provisions which provide social justice to the wife, minor children and the parents. 8. Section 125 of the Code of Criminal Procedure contains salutary provisions which provide social justice to the wife, minor children and the parents. The opening words of section 125 of the Code of Criminal Procedure that “if any person having sufficient means neglects or refuses to maintain” indicate the Legislative intendment that the wife, minor children and old parents cannot be left in lurch or at the mercy of the husband/son. This is statutory duty of a husband to maintain his wife and minor children irrespective of the wife having some income. 9. The object behind enacting section 125 of the Code of Criminal Procedure is that a wife, minor children and parents who are unable to maintain themselves are not left in a stage of distress, destitution and starvation. In “Capt. Ramesh Chander Kaushal v. Veena Kaushal” (1978) 4 SCC 70 the Hon'ble Supreme Court has observed that the provisions under section 125 of the Code of Criminal Procedure is in the nature of social justice and it was specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) re-enforced by Article 39. About a decade thereafter, in “Vimala (K.) v. Veeraswamy (K.)” (1991) 2 SCC 375 the Hon'ble Supreme Court has observed that the provisions under section 125 of the Code of Criminal Procedure are meant to achieve a social purpose. 10. Mr. Purnendu Kumar Jha, the learned counsel for the petitioner would, however, lay stress on Clause (a) to sub-section (1) to section 125 of the Code of Criminal Procedure that a wife who is “unable to maintain herself” only can claim maintenance. 11. This expression has been explained by the Hon'ble Supreme Court in “Sunita Kachwaha v. Anil Kachwaha” (2014) 16 SCC 715 that even if the wife has some income the husband cannot shake off his statutory duty as provided under section 125 of the Code of Criminal Procedure to maintain his wife. It is well accepted that a wife may not be in possession of all necessary informations regarding income of her husband and as held by the Hon'ble Supreme Court in “Rajathi v. C. Ganesan” (1999) 6 SCC 326 a wife is not required to demonstrate that she is living a beggar's life. It is well accepted that a wife may not be in possession of all necessary informations regarding income of her husband and as held by the Hon'ble Supreme Court in “Rajathi v. C. Ganesan” (1999) 6 SCC 326 a wife is not required to demonstrate that she is living a beggar's life. Except stating that his wife has sufficient income from agricultural produce, the petitioner has failed to demonstrate even by preponderance of probability that his wife has sufficient income to maintain herself. In “Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 the Hon'ble Supreme Court has observed that a wife who is away from the company of her husband is entitled for such maintenance which would be sufficient for her to maintain a dignified life; in particular, a life which she would have been enjoying in the company of her husband. 12. A wife becomes entitled for maintenance from the date of her marriage. In a proceeding under section 125 of the Code of Criminal Procedure a wife is not required to prove by leading evidence that she is leading life of a destitute and to deny her claim for maintenance her husband must demonstrate that he has no sufficient income to maintain her. In “Rajathi” the Hon'ble Supreme Court has observed as under : 7. “………. The words “unable to maintain herself” would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 is enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. …….....” 13. Though the petitioner has brought on record a copy of the order dated 20th July 2016 to put forth a defence that he had been paying maintenance to his wife and already paid the due maintenance amount till June 2016, there is no material on record to suggest that he has been complying with the order of maintenance passed by the Principal Judge, Family Court, Godda. In fact, the learned counsel for the petitioner admits that the order dated 30th May 2016 of the Family Court has not been complied by the petitioner. 14. There is another reason why I am not inclined to interfere in this matter. It is well-settled that a revisional jurisdiction can be exercised under very limited situations. In “Deb Narayan Halder v. Anushree Halder (Smt.)” (2003) 11 SCC 303 the Hon’ble Supreme Court has observed that the Appellate Court or the Revisional Court would not interfere with the findings recorded by the Court below unless it is shown that such findings are perverse or the Court has acted with material irregularity. In paragraph-11 of the reported judgment the Hon’ble Supreme Court has observed as under : 11.“.........It is well settled that the appellate or revisional court while setting aside the findings recorded by the court below must notice those findings, and if the appellate or revisional court comes to the conclusion that the findings recorded by the trial court are untenable, record its reasons for coming to the said conclusion. Where the findings are findings of fact it must discuss the evidence on record which justify the reversal of the findings recorded by the court below. This is particularly so when findings recorded by the trial court are sought to be set aside by an appellate or revisional court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the trial court, the party aggrieved is entitled to ask for setting aside of such a judgment.....” 15. For the aforesaid reasons, Criminal Revision No. 764 of 2016 bereft of merits is dismissed. 16. The opposite party shall be at liberty to take such proceedings in the Court below as are available to her for enforcing the order of maintenance dated 30th May 2016.