Jharkhand High Court
Manoj Kumar vs The State Of Jharkhand on 22 February, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 27 of 2018
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Manoj Kumar ...... Petitioner
Versus
1. The State of Jharkhand
2. Sanju Devi @ Sanju Singh ...... Opp. Parties
With
Cr. M. P. No. 916 of 2018
....
Manoj Kumar ...... Petitioner
Versus
1. The State of Jharkhand
2. Sanju Devi @ Sanju Singh ...... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the petitioner : Mr. Suraj Singh, Advocate
For the State : Mr. Rajneesh Vardhan, A. P. P.
Mr. P. K. Chatterjee, Spl. P. P.
For the O. P. No. 2 : Mr. Mahesh Tewari, Advocate
.....
21/22.02.2024 The Criminal Revision No. 27 of 2018 has been filed on
behalf of the Petitioner challenging the order dated 30.11.2017 passed by Sri Ram Sharma, the learned Principal Judge-cum- Family Court, Dhanbad in the M. P. Case No. 271 of 2014 whereby Sri Ram Sharma, the learned Principal Judge-cum- Family Court, Dhanbad has allowed the petition of the opposite party no. 2 filed under Section 125 of the Cr. P. C. for maintenance and has directed the petitioner to pay maintenance amount of Rs. 10,000/- to the opposite party no. 2 and further directed to pay the maintenance amount from the date of filing of the petition and has also directed to make payment of arrears within a month from the date of the order dated 30.11.2017 failing which the opposite party no. 2 will be entitled to get the same recovered through the process of law and Rs. 5,000/- towards expenses of proceeding.
2. The wife i.e. the opposite party no. -2, Sanju Devi @ -2- Sanju Singh has filed a case for maintenance under Section 125 of the CrPC before the learned Principal Judge, Family Court, Dhanbad on 09.09.2014 in prescribed format stating therein that she has been married with the petitioner on 23.04.2004 as per Hindu Customs at Dhanbad and after marriage, they lived as husband and wife. It is stated that the petitioner i.e. the husband is doing business of Crusher and is earning rent from his house. However, the wife-opposite party no.2 and the petitioner- husband are living separately and she has no resource to maintain herself. It is stated that her husband is earing Rs. 25,000/- from business of crusher and earning Rs. 15,000/- as rent from house i.e. total amounting Rs. 40,000/- per month and hence the petitioner may be directed to pay Rs. 10,000/- per month towards her maintenance.
3. The petitioner -husband has appeared and filed show cause stating therein that the petition under Section 125 of the CrPC is not maintainable and the allegations made in the petition are false and concocted and the petitioner has not committed physical and verbal abuse against the opposite party no. 2. It has been stated that the marriage of the petitioner was solemnized with the opposite party no. 2 on 23-04-2004 at Dhanbad according to Hindu Rites and Customs, the rest of the statement and allegations made in the said para are false and baseless. The petitioner had filed a false case bearing Dhanbad (Saraidhella) P.S. Case no. 75/09 dated 03.02.2009 (vide G. R. No. 335 of 2009) under section 498-A I.P.C. and 3/4 of the D.P. Act against the petitioner, his father, mother, brother and sister as a counter blast to T(M)S No.535/08 for divorce filed by the petitioner against the opposite party no. 2 on 30.09.2008 in the Court of Principal Judge, Family Court, Dhanbad and one C.P. Case no. 1959/08 filed in Court of the C.J. M. Dhanbad for the occurrence of 06.10.2008 by the petitioner. It is stated that compromise was arrived at between the -3- Parties and T.M.S. Suit no. 93/08 for Divorce as well as C.P. Case no. 1959/08 were withdrawn by the petitioner on account of compromise. It is stated that even after the compromise and withdrawal of case by the Petitioner, there was no improvement in Cruel and atrocious behaviour of the opposite party no. 2 so the petitioner had no option but to file a fresh TMS Suit 535 of 2008 for divorce against the petitioner on 30.09.2008. The said case has been disposed of by the Family Court and the Appeal is pending in the Jharkhand High Court at Ranchi. It is stated that the opposite party no. 2 had also filed a case under the act of domestic violence vide case no. Complaint Case No. 1383 of 2016 now pending in the Court of the Chief Judicial Magistrate Dhanbad. The opposite party no. 2 is habitual to file a series of cases to harass the petitioner. It is stated that due to atrocious and insulting behaviour of the opposite party no. 2, the father and mother of the petitioner were compelled to leave their own house in Co-operative Colony and they have to live in a rented house at Saraidhella. It is stated that the petitioner continued to live with the opposite party no. 2 for some times at Co-operative Colony, Dhanbad but he was also forced to live separately from the opposite party no. 2 due to her cruel behaviour and ill-treatment towards her husband. It is stated that the petitioner is a temporary clerk in a Private Engineering Firm and earns a monthly salary of Rs.7,000/- (Seven thousand) only.
4. Heard learned counsel for the petitioner and learned counsel for the State and learned counsel for opposite party no. 2.
5. It is submitted by the learned counsel for the petitioner that the impugned order dated 30.11.2017 passed by the learned Principal Judge, Family Court, Dhanbad is arbitrary and not sustainable in the eye of law. It is submitted that the learned Court below has not properly appreciated the evidence of the petitioner.
-4-It is submitted that learned Court below has failed to appreciate that the opposite party no. 2 is residing in the house of the petitioner. It is submitted that the learned Court blow has failed to appreciate that the petitioner is working as a Clerk in Sudershan Engineering Works and it getting salary of Rs. 7,000/- per month. It is submitted that the learned Family Court has failed to appreciate that the opposite party no.2 is residing in the house of the petitioner and has been allowed maintenance by the learned Magistrate at Rs. 3,000/- then also she has filed an application under Section 125 of the Cr. P. C. for maintenance. It is submitted that the learned Family Court also failed to appreciate that the opposite party no. 2 has no issue. It is submitted that the impugned order has been passed mechanically. It is submitted that the petitioner has paid a sum of Rs. 5,90,000/- to the opposite party no. 2 in light of the order dated 30.11.2017 passed by the learned Court below and which has also been admitted by the learned counsel for the opposite party no. 2. It is submitted that behaviour and conduct of the opposite party no. 2 is far from satisfactory and she is not entitled to receive any maintenance as she has shown cruel behaviour towards the petitioner and his family members while living in her matrimonial home and hence the impugned order may be set aside and this Criminal Revision may be allowed.
6. On the other hand, learned counsel for the State has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that petitioner is the husband of the opposite party no. 2 and the petitioner has been directed to pay only Rs. 10,000/- per month by the learned Court below in light of the judgment of the Apex Court. It is submitted that the opposite party no. 2, during her evidence, has fully supported her case before the learned Court below and has proved the monthly income of the -5- petitioner and filed I. T. Return of the husband shown his income more than Rs. 5,00,000/- for three consecutive Assessment Years and the petitioner has failed to produce any documents regarding his income and this Criminal Revision Application is devoid of merit and as such, no illegality has been committed by the learned Court below by passing the impugned judgment and as such, the criminal revision application may be dismissed.
7. On the other hand, learned counsel for the opposite party no. 1, after adopting the submission of the learned A.P.P., has further submitted that this Criminal Revision Application is devoid of merit. It is submitted that the impugned judgement passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that the wife-opposite no. 2 has been deserted and neglected by the petitioner. It is submitted that opposite party no.2 during her evidence, examined as P.W.-1 has fully supported her case and has stated that the petitioner is her husband, but after the marriage, he started torturing and harassing her due to non-fulfilment of demand of dowry and even in the year 2008-09, her father has given a sum of Rs. 5,00,000/- to them. It is submitted that the petitioner has filed divorce case against her, which was dismissed by the learned Court and the Appeal is still pending before the Jharkhand High Court. It is submitted that the petitioner and his family members are doing business of 'Crusher' and also working as Builder and the petitioner has contracted 2nd marriage and thus no illegality has been committed by the learned Court below by directing the petitioner to pay Rs. 10,000/- per month to the opposite party no.2 as maintenance amount in light of the judgment rendered by the Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan reported in 2015 (3) BBCJ (SC) 127. However, learned counsel for the opposite party no. 2 has fairly submitted that she has received Rs. 5,90,000/- from the -6- petitioner. It is further submitted that a sum of more than Rs. 5,00,000/- is still due to the opposite party no. 2 towards the maintenance amount from the petitioner and as such, no illegality has been committed by the learned Court below by passing the impugned judgment and as such, the criminal revision application may be dismissed.
8. Perused the Lower Court Records and considered the submissions of both the sides.
9. It appears that the wife-opposite party no. 2 has filed M. P. Case No. 271 of 2014 under Section 125 of the CrPC on 09.09.2014 against the petitioner in prescribed format in Form No. 4 before the Court of learned Principal Judge, Family Court, Dhanbad. It has also been stated that the petitioner is earning Rs. 25,000/- from the business of crusher and Rs. 15,000/- from the rent from house and i.e. total Rs. 40,000/- per month and has prayed for grant of maintenance of Rs. 10,000/- per month.
10. The wife-opposite party no. 2 in support of her case has got examined herself as a witness, which is as follows:-
(i) P.W.-1 is Sanju Devi i.e. the wife-opposite party no. 2.
11. However, records of ITR return of the husband-petitioner for the assessment year 2014-15 and 2015-16 and 2016-17 had filed before the learned Court below at the time of passing the judgment and which has not been denied.
12. On the other hand, the petitioner -husband has examined one witness in support of his case, which is as follows:-
(i) OPW-1 is Manoj Kumar, i.e. the petitioner himself
13. Apart from this following documents have been marked on behalf of the husband-petitioner, which are as follows:-
(i) Ext.-A is the certified copy of the judgment dated 29.06.2017 passed by the JM, 1st Class, Dhanbad in G. R. Case No. 335 of 2009 arising out of Dhanbad P. S. Case No. 75 of 2009.-7-
(ii) Ext.-B is the certified copy of the order dated 25.01.2017 passed in C. P. Case No. 1383 of 2016 by the learned Chief Judicial Magistrate, Dhanbad.
14. Thereafter the learned Court below has passed the impugned order by directing the petitioner to pay maintenance amount of Rs. 10,000/- to the opposite party no. 2 and further directed to pay the maintenance amount from the date of filing of the petition and has also directed to make payment of arrears within a month from the date of the order dated 30.11.2017 failing which the opposite party no. 2 will be entitled to get the same recovered through the process of law and Rs. 5,000/- towards expenses of proceeding.
15. P.W.-1 is Sanju Devi i.e. the wife-opposite party no. 2. During her evidence, she has stated that her marriage was solemnized on 23.04.2004 with the petitioner and thereafter she went to her matrimonial home. She further stated that her husband is doing business of building material and is also getting rental income from the house situated in Co-operative Colony and he is earning Rs. 20,000/- from business of 'Crusher' and Rs. 20,000/- from building material and Rs. 15,000/- from the house rent i.e. total amounting to Rs. 55,000/- per month. However, she has no source of income and she is being maintained from the income of her father and mother. She has stated that she lived properly in her matrimonial home for one year after the marriage and thereafter mother in-law and father in-law and husband and others started demanding money and started assaulting her. However, for the year 2008-09 her father had handed over a sum of Rs. 5,00,000/- to her husband and his relatives and she was kept properly for some period and after six months, she came to her parental home to attend the marriage of her brother Manoj and after ten days, she asked her husband to take her back, then he refused to come. Then -8- after one day, she learnt from maid Shanti Devi, who was working in her matrimonial home that her husband is going to perform 2 nd marriage. Then he along with her brother Manoj arrived at matrimonial home on 15.12.2007, then her mother in-law refused to open the gate of her matrimonial home and asked her to return, but she waited outside the residence till 4.30 PM, but when the gate was not opened, then she entered into her matrimonial home with the help of the police and lived there properly for some days. Thereafter on 05.05.2008, when husband, mother in-law and father in-law and Dever started assaulting her and she was compelled to live in the backyard of her matrimonial home and her fooding was stopped. However, her husband is living with his parents, but she is living still there and maintaining herself and her meals and foodings is being maintained by her father and mother and her husband is not giving any expenses for her maintenance and he is also not living with her. She has also instituted a case of dowry against her husband in Saraidhella Police Station on 03.01.2009, which is still pending. While she was living with her husband after marriage, then he had instituted a case of divorce against her within six months after marriage and which was dismissed by the learned Court below and her husband has filed the appeal before the High Court. She has also stated that her husband his relatives have sold the entire house and the Purchaser of the house is trying to oust her from the said house and even her electricity and water have been disconnected. She has no source of income. However, her husband along with his father are doing business of Crusher and stone chips and is earning Rs. 40,000/- per month and he is also doing the work of building construction, from which he is earning and her husband has performed 2nd marriage from whom he has got one son and one daughter.
16. However, during cross-examination, she has stated and -9- admitted for instituting a police case bearing G. R. No. 335 of 2009 against her husband and family members and she has given evidence in that case, which was fixed for evidence on 30.06.2017 and in the said case, all the persons i.e. the husband and his relatives have been acquitted. She has also stated for instituting C. P. Case No. 1383 of 2016 against her husband and her father in-law and in the said case, vide order dated 25.01.2017, learned Chief Judicial Magistrate had directed for payment of Rs. 3,000/- per month for her food and expenses. Her husband has deposited Rs. 12,000/- as arrears in her bank account. However, she is not aware that he is depositing the amount of maintenance every month in her bank account or not. She has denied the suggestion that her husband is not doing the business of 'Crusher' and working as a Clerk. She has also admitted that she has no paper of his business. She has denied the suggestion that her husband has not performed the second marriage and has got any children from second marriage. She has denied the suggestion that her husband is earning Rs. 7,000/- per month.
She has denied the suggestion that her husband has not assaulted her. She has also denied the suggestion that her father and brother had ousted the husband from his house. She has denied the suggestion for grabbing the rooms in which she is living and hence this false case has been instituted.
It also appears that this witness was firstly examined in part and in brief on 02.05.2017 as she was said not to be feeling well on 02.05.2017. Thereafter, she was further examined and cross-examined and discharged on 12.07.2017.
17. Thus, from scrutinizing the evidence of P.W.-1 Sanju Devi, it would appear that opposite party no. 2 is the wife of the petitioner and she lived in her matrimonial home for around one year. Thereafter she was said to have assaulted after one year. She -10- has disclosed her address as 3/C Co-operative Colony, Nutandih, Saraidhela, Dhanbad and shown herself as studying in PG. Therefore, it is evident from her deposition and her admission at paragraph-6 that she is still residing in the house of the petitioner/house of the father and mother of the petitioner. Although she was ousted from her matrimonial home sometime after her marriage, but she along with her brother Manoj arrived at her matrimonial home on 15.12.2017 and entered in her matrimonial house with the help of police and she is still residing in her matrimonial home, although the said house has already been sold by the father of the petitioner- husband.
18. R.W.-1 is Manoj Kumar, who is the petitioner himself and stated during his evidence that he was married with the opposite party no. 2-wife on 23.04.2004 as per Hindu Rites without any dowry. However, his wife has instituted a case of dowry and torture against him and his family members bearing G. R. No. 335 of 2009 and in which he along with his family members have been acquitted. He has filed certified copy of the judgment of the said G. R. No. 335 of 2009, which has been marked as Ext. -A. He has also stated that prior to institution of G. R. No. 335 of 2009, he had filed a case against his wife-opposite party no. 2 and her family members, but the said case was compromised between both the sides. However, before instituting that case, he and his family members were already ousted from the said house. He has also stated that he has filed a case for divorce against the opposite party no. 2, but the said case was dismissed and then he had filed an appeal before the High Court. He also stated that his wife-opposite party no. 2 had instituted the case of Domestic Violence against him in which he is paying Rs. 3,000/- per month to the opposite party no. 2-wife and he has proved the certified copy of the order as Ext.-B, which has been passed in Domestic Violence Act. The -11- petitioner has got no children from the marital life of the opposite party no. 2-wife. He is doing private job in Sudarshan Engineering Works as Clerk and earning Rs. 7,000/- per month and apart from this, he has no source of income and he has no vehicle in his name and he and his family members have not demanded any dowry and any material or any amount from his wife and her family members. However, the applicant-wife-opposite party no. 2 is living in his house, which has already been sold by his father. The wife-opposite party no.2 is giving tuition to the children and hence claim of the opposite party no.2 for maintenance is false.
19. During his cross-examination, he has stated that he is living separately from the opposite party no. 2-wife since 2008 and he has not paid any maintenance for fooding since 2008 to 2014. He admitted that the applicant-opposite party no. 2 had instituted a case under Section 498-A of the Indian Penal Code. He also stated that he has no vehicle in his name. He denied the suggestion for earning Rs. 30,000/- to Rs. 40,000/- per month by constructing the building. He denied the suggestion for performing 2 nd marriage and for having two children from the said marriage. He admitted that the case of Domestic Violence is still pending.
20. Thus, from scrutinizing the evidence of R.W.-1, Manoj Kumar, it would appear that he and his family members have been acquitted in G. R. No. 335 of 2009, which was instituted by the applicant-wife-opposite party no. 2 against him and his family members. He further pointed out that opposite party no. 2 is living in a portion of his house, which has already been sold by his father to some other person.
21. It transpires from the Lower Court Records that as per the ITR Return submitted for the Assessment Year 2014-15, 2015-16 and 2016-17, income of the petitoner is shown as Rs. 5,16,650, Rs. 5,82,650/- and Rs. 5,70,726/-respectively and the learned -12- Court below has rightly fixed his monthly income as Rs. 47,560/-.
22. 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.
23. 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."-13-
"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 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."
24. 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 -14- 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) 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."
25. 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 -15- Another reported in 2021 (2) SCC 324.
26. It has been held in the case of Abhilasha Versus Parkash and Ors. reported in (2021) 13 SCC 99, at para 27 to 31, which are as follows:-
"Para-27:- Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla's Principle of Mohammedan Law, this Court in State of Haryana and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: (SCC p. 196) "40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]"
Para-28:- Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property.
Para-29:- Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20.
Para-30:- We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, which was a case under Section 125 Cr.P.C. A Muslim wife -16- with her two daughters and a son filed an application claiming maintenance under Section 125 Cr.P.C. The trial court allowed the maintenance to the wife and children from her husband. The husband after divorcing the wife filed application in the trial court seeking modification of the order in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court modified the order insofar as the grant of maintenance of wife was concerned but maintained the order of maintenance to each of the three minor children. The husband challenged the order by means of revision, which was dismissed by the Revisional Court. An application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned. The High Court held that minor children were not entitled for maintenance under Section 125, Cr.P.C. A special leave to appeal was filed questioning the judgment. This Court dealing with Section 125 Cr.P.C. as well as Act, 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. This Court held that there is no conflict between the two provisions.
Para-31:- This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 of the above judgment: (Noor Saba Khatoon Case, SCC pp. 238-39) "7. ...Under Section 125, CrPC the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of -17- Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 CrPC, cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3 (1)(b) of the 1986 Act."
(emphasis in original)
27. It also transpires that the petitioner is paying Rs. 3,000/- per month to the opposite party no. 2 in light of the order dated 25.01.2017 passed by the learned Chief Judicial Magistrate, Dhanbad and the said case is still pending.
28. It also transpires that the petitioner on the one hand, has been directed to pay Rs. 10,000/- towards maintenance amount in M. P. Case No. 271 of 2014 by the order passed by the learned Principal Judge, Family Court, Dhanbad whereas he has further been directed to pay Rs. 3,000/- per month in C. P. Case No. 1383 of 2016 vide order dated 25.01.2017.
29. It further transpires that the wife-opposite party no. 2 has not examined any witness including her brother and father in support of her case. Even, the petitioner has also not examined any other witness including his father or any other person on the point of 2nd marriage.
-18-30. It has come on the record that the applicant-wife i.e. opposite party no. 2 is still living in the house of the father of the petitioner, which has already been sold. However, photocopy of the sale deed and the name of the purchaser have not been disclosed by the other side. Therefore, it is evident that the both the sides wanted to conceal certain things. The petitioner has failed to prove even his monthly income of Rs. 7,000/- per month for working in Sudarshan Engineering Works, rather on the other hand the opposite party has filed the ITR Return of the petitioner for the Assessment Year 2014- 15, 2015-16 and 2016-17 in which the income of the petitioner is shown as Rs. 5,16,650, Rs. 5,82,650/- and Rs. 5,70,726/-respectively and the learned Court below has rightly assessed his monthly income as Rs. 47,560/-. Therefore, the income of the petitioner has been properly assessed by the learned Court below.
31. However, considering the fact that the petitioner is paying Rs. 3,000/- per month under the D. V. Act and the petitioner is directed to pay Rs. 10,000/- per month appears to be excessive.
32. 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 -19- 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 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 -20- 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."
33. 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.
34. Therefore, in view of the findings of the Hon'ble Supreme Court has to take into consideration the amount of maintenance to be paid by the husband to his-wife in different proceeding.
35. 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. 47,560/- per month and the petitioner is also paying Rs. 3,000/- to his wife-opposite party no. 2 in a proceeding under the provisions of D. V. Act and hence, maintenance amount of Rs. 10,000/- per month requires to be modified.
36. On the facts and in the circumstances of the case mentioned above, the quantum of maintenance granted to Rs. 10,000/- to his wife i.e. opposite party no. 2 is reduced from Rs. 10,000/- to Rs. 7,000/- per month from the date of filing of the petition.
37. The petitioner is directed to pay the arrears of maintenance amount within a period of eight (8) weeks from today, if any, after -21- adjusting the amount deposited by the petitioner.
38. Accordingly, the order dated 30.11.2017 passed in M. P. Case No. 271 of 2014 by the learned Principal Judge, Family Court, Dhanbad is modified to the extent as indicated above and this Criminal Revision No. 27 of 2018 is partly allowed.
39. Let a copy of this judgment be communicated to the learned Court blow at once by FAX.
Cr. M. P. No. 916 of 201840. This Cr. M. P. No. 916 of 2018 has been filed on behalf of the petitioner for quashing of the order dated 15.05.2017 passed by the Court of Miss Sangita, Judicial Magistrate, Dhanbad, whereby Miss Sangita, Judicial Magistrate, Dhanbad has passed an order directing the petitioner to make payment of interim maintenance of Rs. 3,000/- in the account of the opposite party no. 2 in C. P. Case No. 1383 of 2016 in an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as DV Act)
41. The wife-O. P. No. 2 has filed Complaint Case No. 1383 of 2016 before the Court of Chief Judicial Magistrate, Dhanbad stating therein that the marriage between the petitioner and the opposite party no. 2 was solemnized on 23.04.2004 as per Hindu Customs. However, since last 12 years, she is suffering from physical and mental abuse, pain, helplessness, unhappiness and anger on account of dowry demand by the petitioner-husband, father in-law and mother in-law and she had filed criminal case bearing Dhanbad (Saraidhella) P. S. Case No. 75 of 2009 for the offence under Sections 498 -A/34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act and the said case was compromised by the petitioner and his family members and they had executed the bond for not harassing the opposite party no.2, but soon after they again started torturing and -22- harassing the petitioner. Copy of the bond is annexed as Annexure-VI of the Complaint Case No. 1383 of 2016. In the meantime, the husband-petitioner has filed divorce suit bearing T.M.S.No.93 of 2008 to pressurize and extort dowry from her father, but the suit was withdrawn on fulfilment of demand of dowry by her father, but again the husband-petitioner had filed another divorce suit bearing T. M. S. No. 535 of 2008 on the ground of cruelty and impotency, which was dismissed vide judgment dated 19.03.2015 by the learned Court below. It has been stated that during pendency of the said case filed by the opposite party no. 2 under Section 498-A of the Indian Penal Code, the husband and in-laws members got the bail on the basis of compromise and for giving portion of his house i.e. two rooms, kitchen and latrine/bathroom for the opposite party no.-2, wife and rented the rest portion of the house. It has been stated that from time to time, they have disconnected the electric supply to the wife- opposite party no. 2 portion. It is stated that the wife-opposite party no. 2 is an unemployed was having no source of income whereas the petitioner is earning Rs. 80,000/- per month and the wife-opposite party no. 2 is also taking coaching for various competitive exams. The petitioner has not given a single rupee for her day to day expenses or for her education. It is also stated that the petitioner and his family members are trying to sell the house where she is staying and are threatening to oust the petitioner from the house. It is stated that her husband-petitioner is earning Rs. 80,000/- per month and hence petitioner may be prohibited from alienating any assets i.e. house in which the complainant- opposite party no. 2 lives and to restrain the petitioner from disposing or disturbing the possession of the complainant-opposite party no.2 from the shared household in any manner under Section 19 of the Protection of Women from Domestic Violence Act, 2005 and for grant of Rs. 20,000/- per month towards her maintenance and Rs. 30,000/- towards litigation cost and also for -23- passing order under Sections 22 and 23 of the Protection of Women from Domestic Violence Act, 2005.
42. The husband-petitioner has appeared and filed show cause stating therein that the allegations made in the complaint by the complainant-opposite party no.2 are false and concocted and the husband-petitioner has not committed any domestic violence as defence under Section 3 of the Protection of Women from Domestic Violence Act, 2005 and complainant-opposite party no.2 is not entitled to any relief as sought for under Sections 18, 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005. The petitioner has denied for committing any physical, verbal, emotional and economic abuse against the complainant- opposite party no. 2. It has been stated that the opposite party no.2 has filed a false case being Dhanbad (Saraidhella) P. S. Case No. 75 of 2009 corresponding to G. R. No. 335 of 2009 for the offence under Section 498-A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act against the petitioner, his father, mother, brother and sister as a counter blast to T. (M) Suit No. 535 of 2008. It has been stated that compromise was arrived at between the parties in T. (M) Suit No. 535 of 2008, which was filed for divorce as well as the C. P. Case No. 1959 of 2008 and both the cases i.e. T. (M) Suit No. 535 of 2008 and C. P. Case No. 1959 of 2008 were withdrawn on the basis of compromise. However, there was no improvement in cruel and atrocious behaviour of the complainant-opposite party no. 2 and hence, the petitioner has no option, but to file a fresh T. M. S. No. 535 of 2008 against the complainant-opposite party no. 2 on 30.09.2008 and the said case has been disposed of by the Family Court and the appeal is pending before the Jharkhand High Court at Ranchi. It is stated that due to insulting behaviour of the complainant-opposite party no.2, his father, mother and the petitioner-husband were compelled to leave their own house in Co-operative Colony and live in a rented house at Saraidhella.
-24-However, the petitioner continued to live with the complainant- opposite party no.2 for some time at co-operative colony house, but he was also forced to live separately from the complainant-opposite party no. 2 on account to cruel behaviour and treatment. It is stated that the complainant-opposite party no.2 is being financed by her father and mother and brother, who are moneyed persons and big contractor. However, the complainant- opposite party no.2 is not ready to live with the petitioner and due to terror of the complainant- opposite party no.2, all the family members of the petitioner have been compelled to leave the said house of the Co-operative Colony. The complainant had also concealed that she had already filed a case for maintenance case being M. P. Case No. 271 of 2014 under Section 125 of the Cr. P. C. before the learned Principal Judge, Family Court, Dhanbad, which is still pending and as such, this Complaint Case may be dismissed.
43. Heard learned counsel for the petitioner and learned counsel for the State and learned counsel for the opposite party no.2.
44. It is submitted by the learned counsel for the petitioner that impugned order dated 15.05. 2017 passed by the learned Court below is illegal and not sustainable in the eyes of law. It is submitted that the impugned order is bad in law as well as on facts and as such the same is liable to be set aside. It is submitted that the learned Court below has denied to take into consideration that the opposite party no. 2 has already allowed interim maintenance of Rs. 10,000/- per month in M.P.Case No. 271 of 2014 vide order dated 30.11.2017. It is submitted that the petitioner has compelled to pay two separate maintenance amount under two different provisions of the Act, which has resulted into the great injustice also. It is also submitted that due to the behaviour of the complainant -opposite party no. 2, the entire family members of the petitioner has been forced to leave their own house and they are compelled to live in a rented house. It is submitted that -25- the petitioner has deposited certain amount of Rs. 5,00,000/- in M. P. Case No. 271 of 2014 and is also paying the certain amount from time to time to the complainant-opposite party no.2 and hence, impugned order dated 15.05. 2017 passed by the learned Court below may be set aside in the interest of justice and the petitioner may not be liable to pay Rs. 3,000/- per month to the opposite part no. 2 from the date of filing of the application.
45. On the other hand, learned counsel for the State has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that it is a case of passing of the order of interim maintenance amount of Rs. 3,000/- per month under the provision of D. V. Act and hence, no illegality has been committed by the learned Court below while passing the impugned order. It is submitted that the order passed by the learned Court below is well discussed and reasoned one and as such, the Cr. M. P. may be dismissed.
46. On the other hand, learned counsel for the opposite party no. 2, after adopting the submission of the learned A.P.P., has further submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that it is a case of passing the order of interim maintenance amount of Rs. 3,000/- per month under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It is submitted that the wife-opposite party no. 2 has remedy to avail the provisions of both the Act for seeking maintenance under Section 125 of the Cr. P. C. and also under the provision of Section 12 of the Protection of Women from Domestic Violence Act, 2005 in addition to the said Act and it has been upheld even by the Hon'ble Supreme Court that both the proceeding can be held to be maintainable and hence, no illegality has been committed by the learned Court below while passing the impugned order. It is submitted that the order passed by the learned -26- Court below is well discussed and reasoned one and as such, the Cr. M. P. may be dismissed.
47. Perused the Lower Court Records and considered the submissions of both the sides.
48. It transpires that the above complainant case was filed on 28.05.2016 and notice was issued upon the petitioner.
49. It transpires that the husband-petitioner appeared before the learned Court below on 01.10.2016 and has filed show cause on 12.01.2017.
50. It appears that a petition was filed for interim maintenance on 28.05.2016 on behalf of the opposite party no. 2 i.e. wife.
51. It appears from the impugned order dated 15.05.2017 that earlier the learned Court below vide order dated 25.01.2017 had directed the petitioner -Manoj Kumar to pay Rs. 3,000/- per month, but he has neglected to pay the said amount even after passage of four month and on 15.05.2017, learned counsel for the petitioner has shown willingness in his rejoinder that the petitioner is ready to pay the said amount in Civil Nazarat and prayed to pass an order for deposit the interim maintenance in Civil Nazarat. Pursuant to which, the complainant had submitted the photocopy of the passbook of her SBI Account and thereafter the learned Court below has directed the petitioner -husband to pay interim maintenance in the account of complainant-Sanju Devi on or before 10th day of each month.
52. Therefore, it would appear that above impugned order has been passed pursuant to the wiliness and readiness shown on behalf of the petitioner-husband to pay the said amount.
53. It transpires from the Lower Court Records that the learned Chief Judicial Magistrate, Dhanbad has directed the husband- petitioner to pay Rs. 3,000/- per month as interim maintenance vide order dated 25.01.2017, even after noticing the fact that Maintenance Case No. 271 of 2014 filed under Section 125 of the CrPC is -27- pending before the learned Principal Judge, Family Court, Dhanbad.
However, the learned Chief Judicial Magistrate, Dhanbad has rejected the claim of wife-opposite party no.2 for claiming right of residence in the house of Co-operative Society, Nutandih as it was sold by the respondent no. 2 namely Jagdish Singh to one Smt. Malti Devi wife of Tej Narayan Singh by registered Sale Deed dated 25.10.2016.
54. Learned Chief Judicial Magistrate, Dhanbad has further held that a resident belonging to the mother in-law or father in-law could not be a shared household within the meaning of Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005 and daughter in-law would have no right of residence under Section 17(1) of the of the Protection of Women from Domestic Violence Act, 2005.
55. However, the said order dated 25.01.2017 passed by the learned Chief Judicial Magistrate, Dhanbad has not been challenged by the petitioner. And even also by wife-O. P. No. 2.
56. Thus, no illegality has been committed by the learned Court below while passing the the order dated 15.05.2017 by directing the petitioner to pay interim maintenance of Rs. 3,000/- to the opposite party no.2-wife.
57. Accordingly, the Cr. M. P. No. 916 of 2018 is dismissed.
(Sanjay Prasad, J.) Kamlesh/