Jharkhand High Court
Chandresh Karn vs The State Of Jharkhand on 27 June, 2018
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 366 of 2017
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Chandresh Karn. ...Petitioner
Versus
1. The State of Jharkhand.
2. Vidya Kumari.
3. Miss. Aalya Kausi Vigya. ....Opposite Parties
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Abhay Kumar, Advocate
: Mr. Mukesh Kumar Sinha, Advocate
For the State : A.P.P.
For O.P. Nos. 2 and 3 : Mr. Awnish Shankar, Advocate
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10/27.06.2018 Heard the parties.
This application is directed against the order dated 24.01.2017, passed by the learned Principal Judge, Family Court, Dumka in Original Maintenance Case No. 15 of 2014, whereby and whereunder petitioner has been directed to make payment of Rs.6,000/- per month to the O.P. No. 3 as monthly maintenance along with Rs.6,000/- per month for proper accommodation of O.P. Nos. 2 and 3 at Bhagalpur Town and also directed to fix deposit an amount of Rs.25,000/- per annum in the name of O.P. No. 3 so that proper schooling and nourishment of O.P. No. 3 be made.
Submission has been advanced by the learned counsel for the petitioner that the petitioner has lost his job and earns at present a meagre amount. It has been submitted that O.P. No. 2 is a school teacher who gets a handsome salary and is able to maintain herself as well as O.P. No. 3. Learned counsel while referring to the compromise petition has stated that since the criminal case as well as the case filed by the O.P. No.2 were not withdrawn, petitioner did not fulfil the terms and conditions of the compromise and therefore the petitioner cannot be blamed for not complying with the terms and conditions of the compromise and subsequently resiling from it. Learned counsel for the petitioner further submits that the impugned order is totally based on the compromise petition entered into between the petitioner and the O.P. No. 2 while directing the petitioner to make payment of an exorbitant amount, which is contrary to the findings given by the learned court below with respect to the income of the petitioner, which has been assessed at Rs.6500/-. It has been submitted that under such circumstances, the impugned order deserves to be quashed and set aside.
Mr. Awnish Shankar, learned counsel for the O.P. No. 2, on the other hand has referred to the compromise petition as well as the evidence of the petitioner, in which petitioner had agreed to certain terms and conditions. Learned counsel -2- submits that once the petitioner had agreed to make payment of maintenance to the O.P. No. 3 as also to bear the expenses about the accommodation of O.P. Nos. 2 and 3 and to fix deposit a certain amount in the name of O.P. No. 3, petitioner cannot be permitted to go back on his earlier commitment and the learned court below was justified in directing payment of Rs.12,000/- per month to the opposite parties, which also includes accommodation to be provided to the O.P. Nos. 2 and 3 as also the amount of Rs.25,000/- as fixed deposit and in such circumstances present application is liable to be dismissed.
It appears from the impugned order that petitioner was married with O.P. No. 2 on 17.06.2009 as per Hindu Rites & Customs and after marriage there was a demand of dowry and after birth of O.P. No. 3, cruel behavior increased. It further appears that to maintain herself as well as O.P. No. 3, O.P. No. 2 had secured a job as an ad hoc teacher in a remote village and ultimately she was constrained to institute a case under section 498A of the Indian Penal Code, which was registered as PCR Case No.482 of 2012. In an application preferred under section 125 Cr.P.C. for maintenance, it was alleged that the petitioner earns a handsome amount and in such circumstances, the O.P. No. 2 had prayed for payment of maintenance of Rs.15,000/- to her as well as Rs.10,000/- per month to O.P. No. 3. In course of 125 Cr.P.C. proceeding, evidence was led on behalf of both the sides. There appears to be no dispute with respect to the petitioner being husband of O.P. No. 2. Since the complaint case was instituted under section 498A of the Indian Penal Code, it was presumed to mean that O.P. No. 2 was prevented by sufficient cause not to stay with the petitioner on account of the torture meted out to her. Since both these above issues are admitted, learned court below thereafter proceeded to quantify the amount of maintenance to be awarded in favour of O.P. No. 3 by assessing the income of the petitioner. The O.P. No. 2 was examined as P.W-1 in the said proceeding wherein she had claimed that the petitioner earns an amount of Rs.1,00,000/- which includes Rs.50,000/- as salary per month apart from the income from export and import business but in her cross-examination, she had deposed that she had not seen any paper of import and export business nor had seen his office. In fact the O.P. No. 2 has also failed to bring to the notice of the Court as to the work, petitioner does. The O.P. No. 2 had also stated that she had joined as a Government teacher at Bhagalpur on 7th August, 2010. The evidence of the petitioner has also been recorded by the learned court below wherein he had claimed that he earns an amount of Rs.6500/- per month. It would thus mean that learned court below has held that income of the petitioner is Rs.6500/- per month. However, the learned court below seems to have been influenced by the compromise -3- entered into between the petitioner and O.P. No. 2 and had designed the quantum of maintenance based on the purported compromise arrived at between the parties. It is not in dispute that there was indeed a compromise between the petitioner and O.P. No. 2 but some differences had cropped up and it has been submitted by the learned counsel for the O.P. No 2 that petitioner did not make payment as agreed upon, which has been countered by the learned counsel for the petitioner by stating that since the cases, which were instituted by the O.P. No. 2 were never withdrawn the petitioner did not make payment of the amount, which was agreed upon. The compromise therefore was never finally acted upon and the learned court below should have decided 125 Cr.P.C. proceeding based on the evidence available on record instead of placing undue reliance on the compromise petition. The quantum of maintenance, which was awarded in favour of O.P. No. 3 as also the direction for making payment of additional Rs.6,000/- per month to the O.P. No. 2 in order to rent on accommodation at Bhagalpur town apart from an amount of Rs.25,000/-as fixed deposit in the name of O.P. No. 3 does point to the fact that the learned court below had travelled beyond the pleadings of the parties while arriving at the quantum of maintenance.
The circumstances, enumerated above, therefore, leads this Court to come to a conclusion that the quantum of maintenance awarded in favour of O.P. No. 2 as also the amount towards rent is not on proper appreciation of the income of the petitioner. In such circumstances therefore the impugned order dated 24.1.2017, passed by the learned Principal Judge, Family Court, Dumka in Original Maintenance Case No. 15 of 2014 so far it relates to quantum of maintenance to be paid to the O.P. No. 3 including the amount of Rs.6,000/- per month as accommodation for rent and for proper schooling of O.P. No. 3 is quashed and set aside and the matter is remanded back to the learned court below to pass an order only with respect to the quantum of maintenance, which is to be granted in fovour of O.P. No. 3.
It goes without saying that if necessary learned court below will be at liberty to take further evidence to arrive at a proper assessment of the income of the petitioner and the amount of maintenance to be granted to the O.P. No. 3.
This exercise should be completed within a period of eight weeks from the date of receipt/production of a copy of this order.
This application stands disposed of with the aforementioned observations and directions.
(Rongon Mukhopadhyay,J) Rakesh/-