Jharkhand High Court
Saibal Sinha vs Uma @ Joya Paul ....... Opp. Party on 22 February, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 952 of 2018
Saibal Sinha ...... Petitioner
Versus
Uma @ Joya Paul ....... Opp. Party
with
Cr. Revision No. 1434 of 2018
Uma Paul @ Jaya Paul @ Uma @ Joya Paul @ Kumari Uma Paul
...... Petitioner
Versus
Saibal Sinha ....... Opp. Party
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mrs. J. Mazumdar, Advocate (Cr. Rev.952/18)
: Mr. Pratyush Lala, Advocate (Cr. Rev.1434/18)
: Mr. Deepak Sahu, Advocate
For the O.P. : Mrs. J. Mazumdar, Advocate (Cr. Rev.1434/18)
: Mr. Pratyush Lala, Advocate (Cr. Rev.952/18)
: Mr. Deepak Sahu, Advocate
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JUDGMENT
CAV on:19.12.2023 Pronounced on:22/02/2024 Both the Criminal Revision No.952 of 2018 and Criminal Revision No.1434 of 2018 have been heard together and are being disposed of together as they arise of the common judgment dated 22.06.2018 passed in Original Maintenance No.303 of 2015 by the learned Additional Principal Judge, Additional Family Court, Dhanbad by which the learned Court below has directed the husband-petitioner to pay Rs.15,000/- per month from the date of order since the wife-O.P. No.2 was getting interim maintenance as ordered by the learned Court below during the pendency of the proceeding.
The petitioner has further been directed to pay a sum of Rs. 3,000/- in one lump-sum to his wife-O.P. No.2 as litigation cost. It has also been clarified that the maintenance amount will 2 be adjusted against the any of the amount received by the wife- O.P. No.2 from the husband-petitioner.
2. The brief facts of the case of the wife-opposite party is that the marriage between the opposite party and petitioner was solemnized on 27.02.2015 as per Hindu Customs and Rites at Pradhan Khanta and after marriage, they lived as husband and wife at Durgapur. At the time of marriage, cash of Rs.4 lakh, gold and silver ornaments and other household articles given by the parents of opposite party no.2 but they were not satisfied with it and further demanded one Alto 800 Car or to pay Rs.3 lakhs but the father of the opposite party no.2 expressed his inability to fulfill their demand thereafter next day marriage took place and opposite party no.2 was taken to her matrimonial home at Durgapur. It has further been stated that petitioner is MBA and working in Baro Bank, posted at Gurgaon, Haryana and getting salary of package of Rs.8.00 lakhs as told by the petitioner and his father. On the first night of marriage, demand was made and the marriage was not consummated and further on the petitioner and his family members kept demanding dowry and threatened that she will not be allowed to live in her matrimonial home if demand is not fulfilled and the petitioner will solemnize a second marriage. The father-in-law, mother-in-law and other relatives of the petitioner have kept the Stridhan of opposite party no.2. The opposite party no.2 was not allowed to sleep with her husband- petitioner for non-fulfillment of demand of dowry. On 06.03.2015 on the ceremony of Ashtamangla was fixed at the place of the parents of opposite party no.2 but due to non-fulfillment of dowry demands she was not allowed to go. The opposite party no.2 was also not allowed to go to Delhi with her husband on 06.03.2015. The opposite party no.2 was compelled to leave her matrimonial 3 home on 07.03.2015 in spite of attempts made by her family to reconcile the matter. She has made several attempts to contact the petitioner but the petitioner refused to meet her. Thereafter the wife-O.P. No.2 had filed Original Maintenance Case No.303/2015 under Section 125 Cr.P.C against the petitioner (i.e. husband) on 15.07.2015 before the learned Principal Judge, Family Court, Dhanbad and which was later on transferred to the Court learned Additional Principal Judge, Additional Family Court, Dhanbad.
3. The petitioner-husband had appeared before the learned Court below and had filed his show cause on 21.09.2016 stating therein that the present case filed under Section 125 Cr.P.C is not maintainable. It has been stated by the petitioner-husband that the applicant-wife (i.e. O.P. No.2) apart from filing the case under Section 125 Cr.P.C on 15.07.2015, had also filed an application under Section 12 of the Protection of Women in Domestic Violence Act on 19.05.2015 (in short D.V. Act) with an incident report containing the statements which are verbatim reproduction of the statements made in the present petition filed under Section 125 Cr.P.C. It is stated that wife in the above D.V case has claimed total amount of Rs.25,000/- per month for maintenance as well as for other maintenance. But in the present case filed under Section 125 Cr.P.C after two months from the date of filing of D.V Case, she has claimed maintenance of Rs.40,000/- per month. It is stated that the said D.V Case is pending before the Judicial Magistrate in advance stage and the petitioner and her witnesses have been examined and cross-examined and as such the learned Judicial Magistrate will pass final order in the said petition under D.V Act with all the issues including the question of maintenance and hence this maintenance case should be stayed till the disposal of the said D.V case. The petitioner-husband has 4 denied the demand of car, gold or any other marital gifts before solemnization of marriage or at the time of solemnization of marriage and such an allegation of demand of gold jewelry is false and concocted. Neither any cash, ornaments was demanded nor any other material was demanded. It is stated that the allegation of demand of Alto-800 Car or to pay Rs.3,00,000/- cash are false and concocted. The petitioner has denied for earning Rs.8,00,000/- per annum but he has stated that his take home salary is Rs.32,000/- per month which is very meagre to maintain him in a city like Gurgaon and apart from that he is to maintain his old aged parents. At no point of time, any threat of divorce etc. was given. It is stated that wife-O.P. No.2 had taken all ornaments and Stridhan while she was deserting her matrimonial home and the petitioner has not kept any Stridhan or her ornaments. The petitioner-husband has denied for compelling the wife-O.P. No.2 for sleeping in a floor in a separate room rather she was given a separate room with descent accommodation where she spent 5-6 days before returning to her parental home. It is stated that the husband-petitioner had to return to his work place on 06.03.2015 as it was not possible for him to attend Astmangla Ceremony on 06.03.2015 and he had taken a short leave of seven days for the purpose of marriage. The petitioner had took tickets for himself and for his wife-O.P. No.2 by Sealdah Rajdhani Express as he had desired to take his wife along with him to the place of service but due to the conduct of the wife-O.P. No.2, he had to cancel the ticket of the wife-O.P. No.2 and for which his wife-O.P. No.2 had created havoc in the house of the husband-petitioner on 06.03.2015 and they had also assaulted his mother and for which a complaint case has been lodged by the father of petitioner with Bidhan Nagar, Durgapur P.S. It is stated that even the wife-O.P. 5 No.2 and her family members had visited the office of the husband-petitioner and had abused him in the office premises in presence of the staffs of the Bank.
4. Criminal Revision no.952 of 2018 has been filed on behalf of the husband-petitioner by challenging the legality, propriety and correctness of the judgment dated 22.06.2018 passed by learned Additional Principal Judge, Additional Family Court, Dhanbad whereas Cr. Revision No.1434 of 2018 has been filed on behalf of the wife who was petitioner in the Court below and petitioner in Cr. Revision No.1434 of 2018 and she is opposite party no.2 in Criminal Revision no.952 of 2018 whereas petitioner-husband has filed Criminal Revision no.952 of 2018 and who is opposite party no.2 in Criminal Revision no. 1434 of 2018.
5. Criminal Revision No.1434 of 2018 has been filed on behalf of the wife-petitioner for enhancement of the amount of the maintenance.
6. Heard Mrs. J. Mazumdar, learned counsel, who has appeared on behalf of the petitioner in Cr. Revision no.952 of 2018 and O.P. No.2 in Criminal Revision no. 1434 of 2018 and Mr. Pratyush Lala, learned counsel, who has appeared on behalf of the petitioner in Criminal Revision no. 1434 of 2018 and O.P. No.2 in Criminal Revision no.952 of 2018.
Cr. Revision no.952 of 2018
7. It is submitted by Mrs. J. Mazumdar, the learned counsel for the petitioner that the impugned judgment passed by the learned Court below is illegal, arbitrary and not sustainable in law. It is submitted that the learned Court below has failed to consider that there was no demand of dowry ever made by the petitioner and his family members either prior to marriage or after 6 marriage and the allegations levelled by the opposite party no.2 are false and fabricated. It is submitted that the learned Court below has failed to take into consideration that the petitioner has a salary of Rs.32,000/- per month which is very meagre to maintain him in a city like Gurgaon and also he has to maintain his dependent parents. It is submitted that the learned Court below has failed to take into consideration that all the ornaments and Stridhan were all along with opposite party no.2 and while deserting her matrimonial home she took them away with her. It is submitted that the learned Court below has failed to take into consideration that the opposite party no.2 left her matrimonial house on her own will and hence she is not entitled for any maintenance. It is submitted that the learned Court below has failed to consider that the opposite party no.2 has falsely implicated the petitioner and his other family members in C.P. Case No.420 of 2016 for the offence under Section 498A of Indian Penal Code and ¾ of Dowry Prohibition Act in which he has been granted Anticipatory Bail. It is submitted that the learned Court below has failed to consider that the petitioner suffered from Jaundice and Hepatitis-B for which a sum of Rs.1,26,000/- was spent and he had to take a loan for it. It is submitted that the learned Court below has failed to consider that the opposite party no.2 had stayed in her matrimonial home for only six days and five nights. It is submitted that the enquiry in DV Case is pending before the learned Judicial Magistrate, Ist Class, Dhanbad. It is submitted that the opposite party has filed a C.P. Case No.1328 of 2015 under D.V Act also against the petitioner and his other family members and hence the impugned judgment may be set aside.
7Cr. Revision no.1434 of 2018
8. It is submitted by Sri Pratyush Lala, learned counsel for the petitioner that the impugned judgment passed by the learned Court below is contrary to law and against the facts of the case. The petitioner-wife is always ready and willing to stay with her husband but the opposite party-husband is not willing to keep the petitioner along with him without any reasonable cause and excuse. It is submitted that the learned Court below erred in law and fact that the opposite party is getting Rs.80,000/- (Eighty Thousand) per month as monthly remuneration and as such opposite party has not dared to file his salary slip or income tax return. The opposite party has not submitted Form-16(A) to show his Income Tax Return and hence the petitioner is entitled to maintenance of 1/3rd share out of salary of the petitioner. It is submitted that the learned court below has failed to appreciate that the opposite party works as Manager, HSBC Bank, an internationally renowned Bank and posted at Gurgaon (Harayana) whereas in deposition his father has stated that he is working as a Clerk and his monthly remuneration is 32,000/- although the opposite party had not appeared to adduce his evidence, instead his father adduced evidence on behalf of his son. It also shows that the opposite party has got no time to appear before the learned court and he is working in such a high post that there is no possibility of any leave from the office. The petitioner has also enclosed the designation of O.P. No.2 as Annexure-1. It is submitted that O.P. No.2 is earning Rs.80,000/- per month, however, learned Court below has not taken into consideration that the petitioner i.e. wife has not got any earning source and she is fully dependent on opposite party and as such petitioner has to file criminal case for offence under Section 498A of IPC against 8 the opposite party. It is submitted that the petitioner has not got any maintenance order from any other forum and in petition under Domestic Violence Act, no order of any maintenance has been passed against the petitioner. It is submitted that the amount should be paid from the date of filing of the application and not from the date of the order as described by the learned Court below.
9. Perused the Lower Court Records and considered the submission made on behalf of both the sides.
10. The applicant-wife (i.e. O.P. No.2) had examined two witnesses in support of her case, who are as follows:-
(i) P.W-1 is Uma Paul i.e. the applicant-wife herself and
(ii) P.W-2 is Somnath Paul the elder brother of the O.P. No.2.
11. However, no document has been adduced on behalf of the wife-O.P. No.2.
12. The husband-petitioner in support of his case has examined one witness:-
(i) D.W-1 is Sunil Kumar Sinha, i.e. the father of the petitioner.
13. However, no document was marked as exhibit on behalf of the petitioner-husband also.
14. It also transpires that during pendency of the said O.M Case No.303 of 2015 the parties were referred to mediation before the Mediation Centre at Dhanbad.
15. In the meantime, the wife-O.P. No.2 had filed a petition on 17.11.2016 for payment of interim maintenance amount of Rs.20,000/- per month and the learned Additional Principal Judge, Additional Family Court, Dhanbad had directed the husband- petitioner to pay interim maintenance of Rs.8,000/- per month to the wife-O.P. No.2 vide order dated 20.12.2016.
916. It also reveals that the father of the petitioner had deposited the Demand Draft of Rs.25,950/- on 27.02.2018 and even Rs.41,400/- was paid on 05.06.2017. The order sheet further reveals that the Demand Draft of Rs.35,500/- and Rs.8700/- was received on 05.06.2017 and 15.05.2017 by the wife-O.P. No.2 and even the order sheet reveals that certain amounts were paid on 10.08.2017, 06.11.2017, 16.11.2017 and 13.06.2018.
17. So far as evidence led on behalf of the wife-O.P. No.2 is concerned, P.W-1 is Uma Paul, who is the applicant-wife (i.e. O.P. No.2) herself and has stated during her evidence that she was married with the petitioner on 27.02.2015 at Dhanbad and after marriage she had gone to her matrimonial home at Durgapur but she was tortured for the dowry in her matrimonial home and hence she returned to her parental home on 07.03.2015 and since then she is living in her Maike. She had also instituted one C.P. Case No.420/2016 under Section 498A of Indian Penal Code and ¾ of Dowry Prohibition Act against her husband and she had also filed another C.P. Case No.1328 of 2015 under Domestic Violence Act. Her husband is working on the post of Manager at HSBC Bank in Gurgaon and he is earning Rs.8,00,000/- per annum. However, he is not taking care of her since when she is in her parental home and hence a sum of Rs.40,000/- per month may be allowed to her towards the maintenance amount and she had received certain amount towards the interim maintenance.
18. During her cross-examination, she stated that she remained in her matrimonial home only for seven days and has denied for remaining in her matrimonial home for only six days. She also admitted for demanding maintenance amount in her both other cases. She also admitted that she has not proved that her husband is working as a Manager in HSBC Bank. However, she 10 has been allowed interim maintenance of Rs.8,000/- per month and Rs.7,00/- per appearance in her favour and her Maike is situated 10-12 kilometer from the Court and she arrives in Court with her brother by the Bike and she has to meet the expenditure of Bike, her learned counsel and for the fooding and meal etc. She asserted that salary of her husband is more than Rs.80,000/- per month however she does not remember the fact of claiming maintenance amount in other cases. She has denied the suggestion that her husband is posted as a Clerk in HSBC Bank and earning Rs.32,000/- per month.
19. Thus, from scrutinizing the evidence of P.W-1, it is clear that the marriage between the petitioner and O.P. No.2 is admitted and she remained in her matrimonial home for around 6-7 days and she is said to have left her matrimonial home due to the demand of dowry. However, she has not stated that her husband had demanded Maruti Alto-800 Car or Rs.3,00,000/ as cash amount towards the dowry. She admitted for having instituted a C.P. Case under Section 498-A IPC against her husband and she also instituted a C.P. Case No.1328 of 2015 under Domestic Violence Act against her husband. She also admitted that she has claimed maintenance in other both cases.
Thus, it is a fact that the wife-O.P. No.2 had remained in her matrimonial home for a very few days and she could not file the pay slip with regard to the real income of the petitioner.
20. P.W-2 is Somnath Paul, who is the brother of the O.P. No.2 and has stated during his evidence that his sister has instituted this maintenance case upon her husband Saibal Sinha and she was tortured by her in-law's members during marriage ceremony. It was agreed at the time of marriage that the petitioner 11 will keep his sister on his work place but the petitioner had not taken his sister to his work place as his demand of dowry was not fulfilled. However, on receiving the information of torture, he went to the matrimonial home of his sister and brought her back to her parental home and since then she is living at his house and she does not do any work. However, the petitioner Saibal Sinha works as a Manager in HSBC Bank, Gurgaon Branch and is earning Rs.8,00,000/- per annum and his sister is entitled for Rs.40,000/- per month.
21. During cross-examination, he has stated that even in the Mandap of marriage ceremony, the in-law members taunted them that jewellery and materials were of sub-standard quality and they had demanded one Alto Car and Rs.3,00,000/- cash. However, he admitted in para-4 of his cross-examination that prior to marriage the petitioner-Saibal Sinha had got his Alto Car. He also admitted that his sister remained in her matrimonial home only for seven days. He also admitted to have gone to the office of the petitioner- Saibal Sinha and he learnt from the staff of the petitioner and from the family members of the petitioner that the petitioner is an Assistant Manager. He denied that the petitioner is a Clerk in HSBC Bank and is earning Rs.32,000/- per month.
On being asked in question and answer form that the petitioner-Saibal Sinha is ready to pay 25% amount of his salary to his sister every month, the witness replied that his sister will not be able to maintain herself because she has taken admission in B.Ed and he is unable to meet her expenses. He denied the suggestion that the dispute arose between the parties as the petitioner-husband has not taken his sister (i.e. O.P. No.2) at her work place.
22. Thus from scrutinizing the evidence of P.W-2, who is 12 elder brother of the O.P. No.2, it is evident that the applicant- wife (i.e. O.P. No.2) had remained in her matrimonial home only for 6- 7 days and P.W-2 had flatly refused to accept 25 per cent of the salary of the petitioner (i.e. the husband) as his sister is pursuing her B.Ed course. He also admitted that the petitioner has got one Alto Car prior to the marriage. Thus, the allegation of demand of Alto Car and jewellery at the Mandap Ceremony appears to be false, concocted and incorrect. Although P.W-2 has supported the case of the applicant-wife (i.e. O.P. No.2) during his evidence but at the same time this Court finds that the assertion of demand of Alto Car and cash is not correct.
23. D.W-1 is Sunil Kumar Sinha, who is father of the petitioner (i.e. the husband) and has stated during his evidence that petitioner-Saibal Sinha is his only son and he is the only earning member of his family and Uma Paul-O.P. No.2 is his daughter in-law. He also stated that the expenditure of the house does not run with his pension amount because he has to incur medical expenses for himself and his wife and the petitioner helps him economically. He also stated that monthly income of the petitioner (i.e. the husband) is Rs.32,000/- and he was suffering from Jaundice and Hepatitis-B in August, 2017 and in which he had to incur Rs.1,26,000/- and for which he had to take a loan.
During cross-examination, he stated that he was doing service in CSIR and he is getting monthly pension of Rs.14,000/- per month but he cannot deposit his pension slip. However, he has retired from the post of Technical Officer. He also cannot file the loan paper taken by his son. He further asserted that his son is a Clerk in HSBC Bank. He has denied for getting pension of Rs.60,000/- per month. He denied for teaching in a school at Durgapur after superannuation from his service. He denied for 13 having associated with consumer association and for getting good income and also for having medical card of the company and for not having any medical expenses. He denied that his son is getting more than Rs.80,000/- per month.
24. Thus, from scrutinizing the evidence of D.W-1 it would appear that he is father of the petitioner-husband and has stated that his son is working as a Clerk in HSBC Bank and not working as a Manager and he is not getting more than Rs.80,000/- per month.
25. So far as pension of the D.W-1 is concerned, the same is not relevant for deciding the case for the present as it is the amount which D.W-1 earns by virtue of doing his service in CSIR.
26. It transpires that the learned Court below has noticed the fact of pendency of C.P. Case No.420 of 2016 under Section 498A of Indian Penal Code and ¾ of Dowry Prohibition Act against the petitioner and C.P. Case No.1328 of 2015 under D.V Act against the petitioner and his family members and had noted that she lived in her matrimonial home only for seven days. However, it was also noticed that the petitioner had failed to examined himself despite giving sufficient opportunity and he had examined only his father Sunil Kumar Sinha, who has stated that petitioner is getting Rs.32,000/- per month.
Thus, the Court below observed that there is nothing on record to controvert the claim of the petitioner and presumed that the earning of the husband is handsome and he is solvent and thus has directed the petitioner-husband to pay Rs.15,000/- per month to the O.P. No.2 (i.e. the wife).
27. By filing this Criminal Revision Application, the petitioner has taken the plea that the maintenance amount of 14 Rs.15,000/- per month as directed by learned Court below is excessive and he has not demanded any dowry and Alto Car. Even his wife-O.P. No.2 has instituted C.P. Case No.420 of 2016 under Section 498A of Indian Penal Code and ¾ of Dowry Prohibition Act against the petitioner and his family members. However, O.P. No.2 has also instituted C.P. Case No.1328 of 2015 under Domestic Violence Act against the petitioner and his family members.
28. Thereafter by filing supplementary affidavit on 24.11.2023 the petitioner has enclosed a chart giving details of the payment which reveals that a sum of Rs.7,63,857/- (Rs. Seven Lakhs Sixty-Three Thousand Eight Hundred Fifty-Seven) has been paid by the petitioner to O.P. No.2 from December-2016 till December 2023 and has been enclosed as Annexure-1, date wise which include the amount of Rs.8,000/- as interim maintenance and Rs.700/- as appearance per date. He has also enclosed the Demand Draft of Rs.60,000/- in the name of O.P. No.2 dated 02.01.2023 and 03.01.2023 which was deposited in the office of the Registrar General. The petitioner has also enclosed the photo copy of pay slip as Annexure-3 for April-2018 issued by HSBC Bank which shows that the petitioner was earning Rs.32,220/- per month as net salary. He has also enclosed the Income Tax Return for the Assessment Year 2018-19, 2020-21, 2021-22 and 2022-23 showing his gross income as Rs.4,74,867/- (filed on 13.07.2018), Rs.3,54,780/- (filed on 27.09.2020), Rs.4,31,400 (filed on 19.12.2021) and Rs.4,82,440/- (filed on 11.07.2022) respectively.
29. Thus, from perusal of Income Tax Return for the Assessment Year-2018-19, it would appear that at the relevant time the gross income of the petitioner was Rs.4,74,867/- (i.e. approx Rs.40,000/- per month) as the impugned judgment was 15 passed on 22.06.2018 in O.M. Case No.303 of 2015 by the learned Court below.
However, the wife-O.P. No.2 has not denied the averments made in the supplementary affidavit dated 24.11.2023 and the Income Tax Returns of the Assessment Year 2018-19, 2020-21, 2021-22 and 2022-23.
30. The petitioner has also enclosed his assets and liability by filing chart as Annexure-4 which shows that his father is aged around 74 years and mother is aged around 69 years and he is working in HSBC Electronic Data Processing Unit. He has also mentioned that his wife is M.A Hon's in History + B.Ed and is earning Rs.20,000/- per month from private tuition.
This fact has also not been denied by the wife-O.P. No.2 by filing any affidavit.
31. It further transpires that the petitioner has filed one another supplementary affidavit on 07.12.2023 and in which he has enclosed the Income Tax Return for the Assessment Year 2015-16, 2016-17, 2017-18, 2018-19 respectively showing his total income as Rs.1,72,473/-, Rs.374,049/-, Rs.4,65,098/- and Rs.4,74,867/- respectively.
Therefore, the petitioner was earning approx Rs.15,000/- in the year 2015-16, approx Rs.32,000-33,000/ in the year 2016- 17 and approx Rs.38,000-39,000/- in the year 2017-18.
32. Thus at no point of time, the petitioner was earning more than Rs.80,000/- per month as gross salary and thus the assertion of the petitioner that his net salary is Rs.32,220/- is accepted for the period 2016-17 and his gross income is assessed between approx Rs.39,000-40,000/- per month.
33. Therefore, in view of the above, it is evident that the maintenance amount granted by the Additional Principal Judge, 16 Additional Family Court, Dhanbad, to the wife-O.P.No.2 is excessive and liable to be interfered with.
34. It further appears that the wife-O.P No.2 had remained in her matrimonial home at best for around for 6-7 days and she made no attempt to return to her matrimonial home. But, on the other hand, she has filed a series of cases against the petitioner and his family members which is also resulting into expenses of litigation and other cost etc. i.e. by paying fee to the lawyers, procuring papers and some other miscellaneous works which are the outcome of the litigations.
35. It is further evident that the wife-O.P. No.2 has earlier instituted C.P. Case No.1328 of 2015 on 15.05.2015 under the provisions of Domestic Violence Act and there is nothing on record to suggest that any order has been passed by the learned Court below.
36. So far as Criminal Revision No.1434 of 2018 is concerned, the wife is the petitioner in the above case and has filed revision application for enhancement of the maintenance amount to the extent of Rs.40,000/- per month as petitioner is getting Rs.80,000/- per month. She has also enclosed the profile of the petitioner obtained from the website from which it would appear that the petitioner-O.P. No.2, Saibal Sinha is Assistant Manager in HSBC Bank. However, it does not disclose the income of the petitioner.
37. The petitioner-wife Uma Paul of Cr. Revision No.1434/2018 has not challenged the Income Tax Return submitted on behalf of the petitioner in Cr. Revision No.952 of 2018 and the Income Tax Return filed on behalf of the petitioner has neither been controverted in Cr. Revision No.952 of 2018 nor in the Criminal Revision No.1434 of 2018. Thus, for the 17 Assessment Year 2018-19 the gross total income of the petitioner is Rs.4,74,867/- i.e. approx Rs.40,000/- per month and in no case, it is Rs.80,000/- and above.
38. It transpires that both the parties were sent to mediation by this Court earlier before the learned Secretary, DLSA, Dhanbad and the petitioner was directed to deposit Rs.60,000/- before attending the conciliation proceeding and Demand Draft of Rs.60,000/- was deposited by the petitioner on 09.01.2023 before the office of the Registrar General of this Court.
39. This Court has also directed the petitioner to file his pay slip for work in the HSBC Bank and also the Income Tax for the relevant period vide order dated 05.10.2023 and the petitioner has complied with the said order by filing supplementary affidavit dated 24.11.2023 and also on 07.12.2023.
40. Thus, the petitioner has shown his bona fide. It is also a fact that the O.P. No.2 was doing B. Ed course which has been admitted by her own brother namely Somnath Paul, who has been examined as P.W-2 in this case.
Thus, O.P. No.2 is also well qualified lady having passed M.A and B.Ed Examination.
41. The next question which arises for consideration is as to whether the wife-O.P. No.2 is entitled for maintenance, when she herself is not living with the petitioner and has got good educational qualification and from which date maintenance amount will be payable.
42. It is well settled from the judgment of the Hon'ble Supreme Court that husband has to maintain his wife and child, which has been elaborated in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324. and the maintenance amount has to be paid from the date of filing of application 18 under section 125 Cr.P.C.
43. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:-
"Para-77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
Para-78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subpsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non- working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.
Para-80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 19 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339] Para-112:- In Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p.
196, para 13) "13.3. ... purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society."
Para-113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant."
44. It has been held in Chaturbhuj Vs Sita Bai reported in (2008 ) SCC 316 at paragraph 8, as follows:
Para 8:- "In and illustrative case where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that he wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt V. Kamla Devi it was observed that wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under section 125 Cr.P.C.20
45. It is also well settled that even a wife divorced on the ground of desertion, is entitled to maintain.
46. It has been held in the case of Dr. Swapan Kumar Banerjee Vs. State of West Bengal and Another reported in 2020 (19) SCC 342, that even a wife, who has been divorced on ground of desertion, is entitled to claimed maintenance and it has been held at para-5 and 7 which are as follows:-
"Para-5:- Thereafter, in Rohtash Singh v. Ramendri this Court took a similar view: (SCCP 184, para 11)
11. The learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights. Duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her."
"Para-7:- No doubt, as urged by Mr Debal Banerjee. Explanation II to Section 125 9 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex-husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on 21 the ground that event after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee."
47. It is evident that the petitioner has been contesting the case of D.V Act also and the matter is to be decided by the learned Judicial Magistrate and this is a case of overlapping jurisdiction.
48. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-56, 59, 60 and 61 which are as follows:-
"Para-56:-Similarly, in Tanushree & Ors. v A.S.Moorthy, the Delhi High Court was considering a case where the Magistrate's Court had sine die adjourned the proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for maintenance under the D.V. Act were pending. In an appeal filed by the wife before the High Court, it was held that a reading of Section 20(1)(d) of the D.V. Act indicates that while considering an application u/S. 12 of the D.V. Act, the Court would take into account an order of maintenance passed under Section 125 Cr.P.C., or any other law for the time being in force. The mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. There is a distinction in the scope and power exercised by the Magistrate under Section 125, Cr.P.C. and the D.V. Act. With respect to the overlap in both statutes, the Court held : (SCC Online Del para 5) "5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two proceedings are independent of each other and have different scope, though there is an overlap. Insofar as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under Section 12 of the D.V. Act, the maintenance fixed under Section 125 Cr.P.C. shall be taken into account."
(emphasis supplied) Para-59:- In Sudeep Chaudhary v Radha Chaudhary25 the Supreme Court directed adjustment in a case where the wife had filed an application under Section 125 of the Cr.P.C., and under HMA. In the Section 125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded in the 22 matrimonial proceedings under HMA, and was not to be given over and above the same.
Directions on overlapping jurisdictions Para-60:- It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.
Para-61:- To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding."
49. Thus, even though the Hon'ble Supreme Court has observed in the above case that it would be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. The Apex Court has further observed that if maintenance is awarded to the wife in a previously instituted proceeding, then she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the Civil Court/Family Court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.
50. Therefore, in view of the findings of the Hon'ble Supreme 23 Court has to take into consideration the amount of maintenance to be paid by the husband to his-wife in different proceeding.
51. Therefore, in view of the above, it is evident that the learned Court below has fixed and assessed the income of the petitioner as Rs.80,000/- per month which is arbitrary and liable to be interfered with and the petitioner is also paying Rs.8,000/- to his wife-opposite party no.2 in the maintenance proceeding under Section 125 Cr.P.C.
52. On the facts and in the circumstances of the case mentioned above, the quantum of maintenance granted to Rs. 15,000/- to his wife i.e. opposite party no. 2 is reduced from Rs.15,000/- to Rs.9,000/- per month from the date of filing of the petition under Section 125 Cr.P.C.
53. It transpires that O.P. No.2-wife is interested only in litigation as she has instituted not only C.P. Case No.420 of 2016 under Section 498A of Indian Penal Code and ¾ of Dowry Prohibition Act against the petitioner and other family members but has also filed C.P. Case No.1328 of 2015 under D.V Act against the petitioner and his other family members.
54. On the facts and in the circumstances of the case and in view of the discussions made, the order dated 22.06.2018 passed by the learned Additional Principal Judge, Additional Family Court, Dhanbad in Original Maintenance No.303 of 2015 is modified to the extent that the petitioner-husband is liable to pay Rs.9,000/- per month instead of Rs.15,000/- per month to the O.P. No.2-wife from the date of filing of this application and the interim amount of maintenance paid by the petitioner-husband to the O.P. No.2 shall be adjusted accordingly while computing the amount of maintenance of Rs.9,000/- per month.
55. Thus, Cr. Revision No.952 of 2018 is allowed in part and 24 the impugned order dated 22.06.2018 passed by the learned Additional Principal Judge, Additional Family Court, Dhanbad in Original Maintenance No.303 of 2015 is modified to the extent as indicated above.
56. In view of the discussions made above, this Court finds no merit in Cr. Revision No.1434 of 2018 for enhancement of the maintenance amount and as such Cr. Revision No.1434 of 2018 is hereby dismissed with modification that the petitioner-Uma Paul will be entitled to maintenance amount from the date of filing of application under Section 125 Cr.P.C.
(Sanjay Prasad, J.) Saket/ N.A.F.R.