Jharkhand High Court
Suresh Mandal vs State Of Jharkhand And Anr. on 6 September, 2005
Equivalent citations: II(2006)DMC603, [2005(4)JCR433(JHR)], 2006 CRI LJ (NOC) 68, 2006 (1) AIR JHAR R 153, (2005) 4 EASTCRIC 308, (2006) 2 DMC 603, (2005) 4 JLJR 609, (2005) 4 JCR 433 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. This revision application has been filed by the petitioner (hereinafter called as the husband) against the judgment/order dated 8.08.2003 by the 5th Additional District & Sessions Judge, (FTC) Dumka in Criminal Revision No. 104/1993/14/2003, allowing the revision application and directing the husband petitioner to pay Rs. 500/- p.m. by way of maintenance to O.P. No. 2 (hereinafter called as the wife).
2. The wife Dayamani Mandalain filed an application under Section 125 Cr PC before the Sub-Divisional Judicial Magistrate, Dumka, which was registered as Criminal Misc. No. 14/91. It was stated in the said petition under Section 125 Cr PC by the wife that she was the legally married wife of Suresh Mandal, the petitioner herein. The marriage was performed in the Month of May 1983 according to Hindu custom and rights and since thereafter they were living as husband and wife. Subsequently, the husband started neglecting her and he refused to maintain her. He stopped taking any care about her fooding, clothing etc. -Since 1986. Her father requested and tried to persuade his son-in-law, i.e., Suresh Mandal to take is wife and maintain her properly but with no result. Subsequently, the husband Suresh Mandal performed second marriage with one Durgi @ Durga Mandalain, daughter of Ishwar Mandal on 11.3.1990 and since after the second marriage the husband Suresh Mandal completely deserted his wife. The wife was living in her father's house. She had no independent source of income whereas her husband was having sufficient means and landed property and was carrying on the business of sale, purchase and repair of bicycle and was running a shop and was having monthly income more than Rs. 1200/- P.M.
3. The husband Suresh Mandal, filed his show cause wherein he admitted the marriage between him and Dayamani Mandalain, but he denied the allegation of neglecting her and refusal to maintain her. It was further stated by him that his wife herself left her matrimonial home, in his absence. In fact he alongwith his brother-in-law Surendra Mandal had gone to take his wife back but his father-in-law on one pretext or the other did not send her with him. He further denied his second marriage with Durgi @ Durga Mandalain. It was further stated that when his wife was ill he had taken her to Dr. K.K. Sinha of Ranchi and got her examined by him on 1.6.1988, which indicates that he did not neglect his wife. It was further stated by him that in fact his wife was living adulterous life and was entangled with her brother-in-law namely Nand Lal Mandal with whom she had illicit relation and, therefore, she was not wiling to live with him (petitioner) and, therefore, she was not entitled to maintenance at all.
4. On behalf of claimant wife five witnesses were examined before the learned SDJM and on behalf of husband two witnesses were examined. The learned SDJM by his judgment dated 2.2.1993 dismissed the petition filed by the wife and held that the husband Suresh Mandal did not neglect his wife and he went, to his in-laws place to bring his wife back but she refused. It was further held that he was still ready and willing to keep her. with him. It was further held that the conduct of the in-laws of the petitioner showed that they themselves were not willing to send the wife of the petitioner. The learned SDJM further held that the husband was ready to keep his wife with him and he has full right and title over his wife and, therefore, the wife has to go with the husband as she was legally wedded wife of the petitioner Suresh Mandal.
5. Against the said order of the learned Sub-Divisional Judicial Magistrate, the wife, i.e., O.P. No. 2 herein, filed revision before the Sessions Judge, Dumka, which was registered as criminal revision No. 104/1993, and was heard and disposed of by the 5th Additional Sessions Judge (FTC), Dumka by judgment/order dated 8.8.2003 whereby he held that the trial Court committed error in dismissing the petition of the wife and it was a clear case from the evidence on record that the husband of the claimant wife had deserted her and refused to maintain her. Therefore, she was entitled to maintenance and thereby allowed maintenance @ Rs. 500/- p.m. in favour of the wife. The said judgment/order of the revisional Court is under challenge in this revision application by the husband.
6. Mr. Tandon, learned counsel appearing for the petitioner has firstly submitted that the learned revisional Court without setting aside the order of the learned SDJM has allowed the maintenanc in favour of the wife, which was illegal. If was next contended that the revisional Court could not have re-appreciated the evidence on record in exercising revisional powers and, therefore, has committed error in reversing finding of facts arrived at by the learned SDJM. It was next contended that the wife was living adulterous life with her brother-in-law and, therefore, she was not entitled to any maintenance whatsoever.
7. On the other hand Mr. Roy, learned counsel appearing for the O.P. wife submitted that the dismissal of the application under Section 125, Cr PC by the SDJM was absolutely illegal and, therefore, the learned revisional Court was completely within his jurisdiction to set aside the order of the trial Court and to allow the maintenance. It was further submitted that since the husband made wild allegation against the character of his wife by alleging that she was living in adultery with her brother-in-law which he failed to prove by any cogent evidence and, therefore, on this ground alone the wife was justified in refusing to live with her husband and she was entitled to maintenance.
8. I have gone through the judgment of both the Court below, i.e., of the learned SDJM as well as of the revisional Court and find that the learned SDJM had completely gone beyond his jurisdiction in holding that since the claimant wife was legally married with her husband Suresh Mandal and, therefore, her husband had every right and title over her and, therefore, she has to go with her husband if he is ready to keep with him. The learned SDJM did not consider that the husband of the claimant had made allegation against his wife that she was having illicit relationship with her brother-in-law and this fact was not proved at all by any cogent evidence. I find that the learned revisional Court was within his jurisdiction to appreciate the evidence in order to find as to whether the husband "had neglected his wife and refused to maintain her and whether the wife was entitled to claim maintenance against her husband.
9. On appreciation of the facts, the learned revisional Court rightly allowed the maintenance in favour of the wife by holding that the allegation of adultery was not proved by any cogent evidence. Though the revisional Court in specific words has not set aside the order of the trial Court but at the same time he has stated in his judgment that the learned SDJM committed error in dismissing the petition filed by the wife that means he was not agreeing with the findings arrived by him and, therefore, the allowance of maintenance in favour of the wife would be deemed that the judgment of the trial has been reversed.
Accordingly, I hold that there is no error in the judgment/order of the revisional Court and, as such, having found no merit in this revision application, the same is dismissed.