Jharkhand High Court
Dr Tulsi Kumar Saha vs The State Of Jharkhand And Anr on 17 May, 2016
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 600 of 2015
Dr. Tulsi Kumar Saha, son of Late Bhikho Saha
Resident of Telipara (Debipara) Hirapur, PO, PS &
District- Dhanbad .... .... Petitioner
--Versus--
1. State of Jharkhand
2. Bina Saha, wife of Dr. Tulsi Kumar Saha, daughter of
Sri Kailash Sao, resident of Telipara, Hirapur, PO, PS &
District- Dhanbad .... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
For the petitioner : -Mr. Atul Kumar, Advocate
For the State :- Mr. Ravi Kumar Singh, A.P.P.
For O.P. Nos. 2 :-Mr. Pratiush Lala, Advocate
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C.A.V. ON:10/05/2016 PRONOUNCEDON: 17/05/2016
The petitioner by filing this revision application under
Section 19(4) of Family Courts Act has questioned the legality of
the order dated 21.02.2015 passed by the Principal Judge, Family
Court, Dhanbad in Maintenance Case no. 12 of 2011 whereby and
whereunder, he has been directed to pay Rs.3,000/- per month to
his wife-opposite party no.2 Bina Saha and Rs.2,000/- each per
month to the minor daughters till they are married or gainfully
employed.
2. Bereft of unnecessary details, the facts, which is
relevant for the proper adjudication of this revision application, in
short, is that the marriage of present opposite party no.2 was
solemnized with this petitioner on 26.02.2000 according to Hindu
Rites and Rituals and from the wedlock, the couple blessed with
two daughters but aggrieved by the born of two daughters, the
claimant-wife was subjected to physical and mental torture and he
deserted his wife and two minor children on 04.10.2009 and
refused to maintain them. Since then the opposite party no.2
alongwith her two daughters have been living in her Maika and
they have no independent source of income to maintain her small
family including the two minor daughters rather they are
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completely dependent upon her parents, who have their own
expenses. On 08.01.2011, when the petitioner lastly refused to
provide money for maintenance, the aforesaid case was filed with
a prayer to direct the petitioner to pay Rs.15,000/- towards
maintenance to the claimant-wife and Rs.10,000/- towards
maintenance to the two minor children.
3. The present petitioner filed show cause in the court
below stating that opposite party no.2- his wife is living separately
at her own and even after his several attempts, she refused to come
to the marital home. Thereafter, a suit for grant of decree of
dissolution of the marriage of the parties with mutual consent was
filed but due to exorbitant demand of permanent alimony by the
wife, the suit could not be decreed and subsequently the same was
dismissed as withdrawn and though this petitioner is a medical
practitioner but he has no monthly income from medical practice
as he is mainly relying on treatment by the alternative medicines.
4. The learned Principal Judge, Family Court after
considering the pleadings of the parties and the evidences brought
on record, directed the petitioner to pay the maintenance as
indicated above. Hence, this revision.
5. Learned counsel appearing for the petitioner assailing
the order impugned as bad in law and perverse seriously
contended that the court below without following the mandates of
sub-section (4) and (5) of Section 125 of the Code of Criminal
Procedure (in short "the Code") passed the order impugned
though the complainant had herself deserted the company of this
petitioner and is living separately. It was also contended that the
court below has not appreciated the evidence in right perspective
and without deciding the "sufficient means" of the petitioner
merely relying upon the evidence on record and the fact that the
petitioner is an M.B.B.S. Doctor, directed to pay a highly excessive
amount as maintenance. It was also submitted that a suit for
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dissolution of the marriage was filed with mutual consent of both
parties but the same was subsequently dismissed as the petitioner
was not in a position to pay the exorbitant demand of permanent
alimony of opposite party no.2. Hence, the order impugned
deserves to be set aside.
6. Learned counsel appearing for the opposite party no.2
refuting the submissions, submitted that the petition for
dissolution of the marriage filed with mutual consent would make
no difference and the wife's claim for maintenance under
explanation (b) of Section 125 of the Code continues unless the
marriage is dissolved by a competent court but as the petitioner
refused to pay any permanent alimony to the opposite party no.2,
she declined to dissolve the marriage. It was also submitted that
the court below after interpreting the provisions of Section 125 of
the Code in right perspective and also considering that the
provision is enacted for social justice and specially to protect
women and children rightly directed the petitioner to pay the
maintenance. Lastly it was also submitted that the opposite party
no.2 was subjected to physical and mental torture and that was the
reason for her withdrawal from the company of the petitioner and
there is every apprehension that the moment she returns along
with two minor daughters to her matrimonial house, she would be
subjected to physical harm.
7. After giving a thoughtful consideration of the rival
submissions made by the counsels, the question, which has come
up for consideration by this Court, is as to whether the petitioner is
capable of paying the maintenance amount granted by the court
below and whether the opposite party no.2 is entitled to any
maintenance in view of bar created under sub-section (4) of Section
125 of the Code.
8. I have examined the evidences available on record
wherein the opposite party no.2- the wife has clearly testified that
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due to physical and mental torture at the hands of the petitioner,
she decided to live separately. The petitioner in his pleading as
well as in his evidence has admitted the fact that he has not given
any maintenance to his wife and the two minor daughters. The
petitioner has not brought on record any document to show his
monthly income and from the evidence available on record, it
appears that the petitioner is an M.B.B.S. Doctor with post-
graduate degree of M.D. and attached with Sai Nursing Home and
Research Centre, Dhanbad. Besides that in the year 2010, he had
sold one of his property on a consideration amount of
Rs.36,00,000/-. In that circumstance, he cannot be said to be not
competent to pay the maintenance to his wife and two minor
children. In view of Section 106 of the Evidence Act, burden was
on the petitioner to prove the fact of his monthly income since it
was specially within his knowledge but intentionally he has not
brought on record any evidence to show his monthly or annual
income. So, the court below has rightly recorded the finding that
the petitioner has sufficient means and is capable to pay the
maintenance. So far as the submission of the learned counsel for
the petitioner that the opposite party no.2- the wife had withdrawn
the company of the petitioner on her own is concerned, nothing
has been brought on record that his wife had any extra marital
relationship as alleged by the petitioner and because of that, she
had withdrawn herself from the conjugal life. Contrary to that, she
has clearly testified in her evidence that after the birth of two
daughters, she was subjected to physical and mental torture, which
finds corroboration from the evidence of P.W.2- the father also.
9. In connection with the submission of learned counsel
for the petitioner that the amount of maintenance is highly
excessive, I fill necessary to advert to decision in Ekradeshwari Vs.
Homeshwar reported in AIR 1929 P.C. 128 wherein the Hon'ble
Privy Council while considering the similar situation observed that
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maintenance depends upon a gathering together of all the facts and
the situation, amount of free estate, the past life of the married
parties and the family, or reasonable view of change of
circumstances, mode of living and the age, habits and wants and
class of life of the parties.
Admittedly, the petitioner being a
doctor has a place in society and naturally, the mode of living and
class of his life must have been above the living standard of a
common man. The family background of the petitioner appears to
be sound enough studded with the fact that he had disposed of
one of his property in the year 2010 on a consideration amount of
Rs.36,00,000/-. Secondly, he is an able bodied man and working
with nursing home. On the other hand, the opposite party no.2
along with her two minor daughters are dependent upon the old
parents. In my opinion, in the circumstances discussed above, the
amount of maintenance awarded by the court below does not
appear to be excessive, particularly in view of the present
inflationary trend and high price rise.
10. Having considered the above facts, it leaves no manner
of doubt that the petitioner has not sufficient means to maintain his
wife and two minor daughters. Thus, in view of the above
discussions, the amount of maintenance granted by the court
below does not require any interference and the opposite party
no.2 certainly had just grounds not to live with her husband and
there is no error or illegality pointed out by the petitioner so as to
interfere in the order impugned.
11. This revision application, being devoid of any merit, is,
hereby, dismissed.
(R.N. Verma, J.)
Jharkhand High Court, Ranchi
Dated, 17th May, 2016
Ritesh/N.A.F.R.