Jharkhand High Court
Lakhindra Mirdha vs (1) The State Of Jharkhand on 6 July, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 73 of 2016
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Lakhindra Mirdha, Son of Late Sukdeo Mirdha @ Sukud Mirdha, Resident of village-Gangta (Khurd), P.O&P.S.-Godda (T), District-Godda ... Petitioner Versus (1) The State of Jharkhand (2) Kusum Devi, Wife of Lakhinder Mirdha, Resident of village- Gangta (Khurd), P.O-Godda, P.S.-Godda(T), District-Godda, present address Village-Mahara, PS- Poraiyahat, District-Godda (3) Priyanka Kumari (aged about 8 years), D/o Lakhinder Mirdha, Resident of village-Gangta (Khurd), P.O&P.S.-Godda (T), District- Godda (4) Suraj Kumar Mirdha (aged about 6 years), son of Lakhinder Mirdha (5) Priya Kumari (aged about 4 years), D/o Lakhinder Mirdha (6) Ladli Kumari (aged about 1 year), D/o Lakhinder Mirdha Petitioner no.1 is the natural Guardian of Petitioner nos.2, 3, 4 and 5 and residents of Petitioner Nos.3 to 6 are village- Mahara, PO-Poraiyahat, PS-Poraiyahat, District-Godda ... Opposite Parties
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(Through V.C) CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Arvind Kr. Choudhary, Advocate For the O.P No. 2 : Mr. Lakhan Chandra Rai, Advocate
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09/06.07.2020 The husband is aggrieved of the order of maintenance passed in Maintenance Case No. 117 of 2012 by which he has been directed to pay Rs.2,000/- per month to his wife and Rs.1500/- per month to his children, cumulatively Rs.8,000/- per month.
2. Mr. A.K. Choudhary, the learned counsel for the petitioner submits that the applicant-wife has taken contrary stand in the application for interim maintenance and during her examination in the court. The learned counsel further submits that mother of the applicant no.1 has also given divergent evidence on income of the petitioner.
3. Limitations of the revisional jurisdiction have been 2 explained by the Hon'ble Supreme Court in a series of judgments. In "Dev Narayan Halder Vs. Anushree Halder"
reported in (2003) 11 SCC 303, the Hon'ble Supreme Court has observed that the appellate court or the revisional court should not interfere with a finding of fact recorded by the court below unless it is found that the finding is perverse and untenable. In "Shiv Nandan Paswan Vs. State of Bihar" reported in (1987) 1 SCC 288, a Constitution Bench of the Hon'ble Supreme Court has held that in revisional jurisdiction the courts should not embark upon a minute examination of the evidence. The applicant no.1 is a rustic illiterate lady. She has stated that her husband is a driver and he has income from agriculture also. Her mother has also stated about income of the petitioner. Marriage of the petitioner was solemnized with the applicant no.1 and from the wedlock 4 children - one son and 3 daughters - were born. She has alleged that her husband started torturing her after birth of the girl child and on 08.10.2012 she and her children were ousted from the home. Thereafter, she is living with her parents and she has no independent source of income. She had examined 3 witnesses in support of her claim for maintenance. However, they were not cross-examined by her husband. It has been held by the Hon'ble Supreme Court that the same standard of examination as of a sophisticated urban witness is not applied while examining a rural witness [refer, "Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra", reported in (1973) 2 SCC 793].
4. The proceeding under section 125 Cr.P.C is primarily of civil in nature and it is a summary proceeding. The courts generally do not apply the strict rules of evidence in a summary proceeding and the test as is in every civil case is primarily preponderance of probability.
5. In "Vimala (K.) Vs. Veeraswamy (K.)" reported in (1991) 2 SCC 375, the object behind section 125 of the Code of Criminal Procedure has been indicated by the Hon'ble Supreme 3 Court in these words:
"3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife...."
6. In "Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others" reported in (1978) 4 SCC 70, the Hon'ble Supreme Court has observed :
" 9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause -- the cause of the derelicts."
7. The petitioner who has failed to lead any evidence and cross-examine the witnesses examined on behalf of the applicant no.1 has tried to wriggle out from his responsibility to maintain his wife and the minor children on technical grounds. In "Shamima Farooqui Vs. Shahid Khan" reported in (2015) 5 SCC 705, the Hon'ble Supreme Court has held as under :
"14. .......... It can never be forgotten that the inherent and fundamental principle behind Section 125 of the Code of Criminal Procedure is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a 4 life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 of the Code of Criminal Procedure, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 of the Code of Criminal Procedure can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 of the Code of Criminal Procedure, unless disqualified, is an absolute right."
8. In view of the aforesaid discussions, I am of the opinion that the amount of maintenance fixed by the learned Principal Judge, Family Court, Godda is just, proper and reasonable and it does not warrant interference by this Court.
9. Accordingly, Criminal Revision No. 73 of 2016 is dismissed.
(Shree Chandrashekhar, J.) R.K.