Jharkhand High Court
Jawed Akhtar vs State Of Jharkhand And Anr on 4 July, 2013
Author: H.C.Mishra
Bench: H.C.Mishra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 496 of 2013
-------
Jawed Akhtar .... Petitioner
-Versus-
1. The State of Jharkhand
2. Nusrat Praveen ..... Opposite Parties
-------
CORAM : HON'BLE MR. JUSTICE H.C.MISHRA
------
For the Petitioner : : M/s. Jitendra Shankar Singh
For the Opposite Parties : : M/s. A.P.P.
-------
02/ 04.07.2013Heard learned counsel for the petitioner and learned counsel for the State as also learned counsel for opposite party No. 2.
The petitioner is aggrieved by the order dated 07.05.2013 passed by the learned Sub-Divisional Judicial Magistrate, Latehar, in Misc. Case No. 07 of 2010/ T.R. No. 654 of 2013, whereby in a proceeding under Section 125 of the Cr.P.C., the petitioner has been directed to make the payment of Rs.5,000/- per month to his deserted wife and also Rs.3,000/- per month to his minor daughter living with her mother, for their maintenance from the date of the petition.
The impugned order shows that the application under Section 125 of the Cr.P.C. was filed by the opposite party No. 2 claiming herself to be the legally wedded wife of the petitioner and out of the wedlock a daughter was born which is about 8 years old. Subsequently, she was being subjected to cruelty and torture for demand of money and the petitioner married another lady on 19.7.2009. It is also stated that she was not able to maintain herself and her daughter, whereas the petitioner is having a medicine shop and he is also working as a Journalist and having the income of Rs.50,000/- to 60,000/- per month. The petition was accordingly, filed for maintenance.
It further appears from the impugned order that the petitioner appeared in the Court below and filed his show-cause in which the marriage between the parties and the birth of the daughter from the wedlock are admitted facts. It is also admitted that the petitioner had married another lady with whom also he has issues, but the case of the petitioner is that prior to the marriage he had divorced his first wife, which fact was denied by the opposite party No.2 in the Court below. The petitioner also admitted that he was having a medicine shop, but he claimed that he was having income of only Rs.100/- to Rs.150/- per day from the said medicine shop and he had no other source of income. The petitioner denied the liability to make the maintenance of opposite party No. 2, as she was already divorced, and according to the Muslim Law and she was not entitled to maintenance. With these averments the petitioner denied the liability to make the payment of maintenance to the opposite party No. 2.
-2-Both the parties adduced evidence in the Court below. The applicant wife in the Court below examined 4 witnesses including herself, and her daughter, who supported the case of the applicant in the Court below. The witnesses denied any divorce between the parties and they claimed that the petitioner had married another lady. The witnesses have also deposed about the income of the petitioner from the medicine shop and from working as a Journalist.
The petitioner had examined 5 witnesses in the Court below including himself and his family members and though the witnesses stated about the divorce between the parties, but the impugned order shows that no documentary evidence with respect to the divorce was adduced in the Court below. The witnesses on behalf of the petitioner, including the petitioner had stated that he had income of only Rs.100/- to Rs.150/- per day from the medicine shop, but in the cross-examination one witness examined by the petitioner admitted that the medicine shop of the petitioner was on the main road in front of the police station. The witness also admitted that the petitioner was working as a Journalist. The witnesses also admitted in their cross- examination that the petitioner was also maintaining a Nano Car.
Taking into consideration these evidences on record the Court below found the opposite party No. 2 entitled for maintenance and has accordingly, directed the petitioner to make the payment of Rs.5,000/- per month to his deserted wife and also Rs.3,000/- per month to his minor daughter living with her mother, for their maintenance.
Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, though the marriage between the parties and the birth of the daughter are admitted in the case, but the Court below had not given any finding as to the income of the petitioner and without giving any such finding, the order of maintenance has been passed, only due to the fact that the petitioner is having a medicine shop and he is also maintaining a Nano Car. It is submitted that the amount of maintenance is very excessive and the petitioner is financially not in a position to make the payment of maintenance as directed by the Court below, and accordingly, impugned order cannot be sustained in the eyes of law.
Learned counsel for the State has opposed the prayer and has submitted that the maintenance allowed by the Court below is based on the evidence on record.
After having heard learned counsels for both the sides and upon going through the impugned order, I find that the only point of difference in the present case is the income of the petitioner. The marriage between the parties and the birth of the daughter are admitted facts in this case. The opposite party wife has sufficient reason for living separately, as the second marriage of the petitioner is also an admitted fact. The petitioner has failed to prove his -3- case that the opposite party No.2 was divorced by him, by bringing any cogent evidence on record, and in a proceeding under Section 125 of the Cr.P. C., the factum of divorce between the parties is not going to make any difference.
The petitioner has denied the income and has stated that he is having the income of Rs.100/- to 150/- per day from the medicine shop. This clearly shows that the petitioner was concealing his actual income from the Court below, as by no stretch of imagination it can be believed that the medicine shop which was situated on the main road and opposite to the police station, was fetching the income of Rs.100/- to 150/- per day only. This apart, the witness examined by the petitioner himself has admitted that the petitioner was also doing the work of Journalism and he was also maintaining a Nano car.
In view of the aforementioned discussions, I am of the considered view that the petitioner has sufficient income to pay Rs.5,000/- per month to his deserted wife and also Rs.3,000/- per month to his minor daughter living with her mother, for their maintenance, and the said amount cannot be said to be excessive by any stretch of imagination.
In the facts and circumstance of this case, taking into consideration the sources of income of the petitioner, I do not find any illegality and / or irregularity in the impugned order passed by the Court below, worth interference in the revisional jurisdiction. There is no merit in this application and the same is accordingly, dismissed.
(H.C.Mishra, J.) D.S.