Jharkhand High Court
Hemant Kumar Mishra Son Of Late ... vs The State Of Jharkhand on 24 February, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1199 of 2016
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Hemant Kumar Mishra son of Late Baikuntha Kumar Mishra, resident of Jalsar Road, Near Bharti Hotel, PO&PS-Deoghar, District-Deoghar, Jharkhand .... ...... Petitioner Versus
1. The State of Jharkhand
2. Premlata Devi wife of Sri Hemant Kumar Mishra, daughter of Raghunath Jha
3. Ramashankar Mishra son of Sri Hemant Kumar Mishra Both are residing at village Kashidih, PO-Chanddih, PS-Kunda, District-Deoghar, Jharkhand .... ...... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. V.S. Jha, Adv.
For the State : Mr. P.K. Choudhary, APP
For O.P. No.2 : Mr. Ashok Kr. Sinha, Adv.
Mr. H.S. Pandey, Adv.
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05/24.02.2020 The petitioner has challenged the judgment
dated 27.05.2016 passed in Cr. Miscellaneous No.37 of 2012 by which he has been directed to pay Rs.7,000/- per month to his wife and Rs.2,000/- per month to his minor son from the date of the application.
2. The learned counsel for the petitioner has confined his argument to the quantum of maintenance awarded by the learned Family Court Judge.
3. The marriage of the petitioner was solemnized with O.P. No.2 about 35 years back and from the wedlock a son and a daughter were born. His daughter is married and his son was aged about 16 years when his wife has filed the application for maintenance. His wife has alleged that her husband is not maintaining her and their minor son though he is getting Rs.25,000/- per month as salary from his service under the Health Department. The petitioner appeared in the proceeding of Criminal Miscellaneous No.37 of 2012 and filed his affidavit denying the allegations levelled against him by his wife. He has taken a stand 2 that he has been appointed on compassionate ground and, therefore, he has to maintain his other family members. He has to maintain his sister who has been deserted by her husband and he has also to maintain his niece whose mother, father and grand parents are not alive. He has also stated that he has taken loan from the Allahabad Bank for marriage of his daughter and Janew (christening) ceremony of his son.
4. In the proceeding of Cr. Miscellaneous No.37 of 2012, the parties have laid oral evidence; the petitioner's wife has examined three witnesses and the petitioner has also examined three witnesses. The petitioner's wife has reiterated her allegations in the application under section 125 Cr.P.C. She has claimed that the petitioner is drawing salary of about 25,000/- per month however he has refused to maintain her and their minor son. The witnesses examined by the petitioner have spoken about liability of the petitioner to maintain his sister and niece. The petitioner who has examined himself as OPW. 1 has also stated about loan taken by him.
5. On the basis of the materials laid before him, the learned Family Court Judge has held thus:
9. "After going through facts and circumstances of the case as well as the evidence available on the case record, it transpires that the petitioner no.1 is legally married wife of the O.P whereas the petitioner no.2 is the O.P's son. The evidence adduced by the witnesses also reveals that the O.P has been looking after his sister Baby Devi and one of his sister's daughter Kajal Kumari, the petitioners have not been residing alongwith the O.P and also that the petitioner no.1 has lodged criminal case against her husband. After perusal of Ext.'C' it transpires that the gross income of the O.P is Rs.32,144/- in the month of May 2015 whereas a sum of Rs.7,030/- is being deducted as GLI and GPF and Rs.5,300/- as advance taken by the O.P. The O.P has failed to explain the valid reasons why his wife and his son have left his home and why the petitioners have been residing at his wife's parental house and on the other hand, the petitioner has stated in her evidence that the O.P has refused to maintain her as well as her husband. The ld. lawyer appearing 3 on behalf of the Opposite Party has filed the decision of the Hon'ble Apex Court in the case of Moideen Vrs.
Nabeesha reported in AIR 2007 (DOC) 197 Kerala (KER), wherein the Hon'ble Apex Court has held that the claim made by the wife can be resisted by not living with him is objectionable and without sufficient cause, the contention of the husband that the wife is not living with him but if her husband offers to maintain his wife on contention that she lives at her parental house without no reasonable prospect of his living with her, it is not a valid offer. On the other hand, the ld. lawyer appearing on behalf of the petitioner has filed the decision of the Hon'ble Apex Court in the Case of Minakshi Gaur Vrs. Chitanjan Gaur & Anr. reported in 2009 (3) AIR Jhar 446, R Hon'ble Court has held that in the case of earning wife where her earning is in sufficient and the husband has been earning substantial salary per month, the husband is liable to pay maintenance of Rs.5,000/- per month to his wife. In the present case, the O.P has not produced any cogent evidence in support of the fact that he has been looking after his wife and son and also that he has been meeting the education expenses of his son. Although the O.P is duty bound to maintain his sister and sister's daughter, it does not mean that the O.P should neglect his wife and as well as his son. Ext. 'A', Ext. 'B' and Ext. 'C' reveals that the O.P has taken loan from the Allahabad Bank but the O.P has failed to produce any cogent evidence in support of the fact that he has taken loan for the marriage of the daughter. I am of the opinion that the husband is duty bound to maintain his wife as well as his children as the O.P has been drawing a monthly income of Rs.32,000/- per month (approx), I am of the opinion that he draws sufficient salary to maintain his wife and his son."
6. From the materials brought on record, it stands admitted by the petitioner that his salary was more than Rs.32,000/- and after deductions he was receiving more than Rs.19,000/- per month. He has claimed that he has been repaying loan for which he has to pay Rs.8,000/- per month. However, in support of his claim he has not produced any document. The claim of a wife for maintenance commences from the date of her marriage. The obligation of a husband is to maintain his wife and the minor children. The situation of a wife 4 becomes difficult and sometimes miserable when she has to leave her matrimonial home. She is deprived of many comforts of her life. In "Shamima Farooqui Vs. Shahid Khan" reported in (2015) 5 SCC 705 , the Supreme Court has observed that grant of maintenance to his wife has been perceived as a measure of social justice and the plea which is sometimes taken 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 are bald excuses and in fact they have no acceptability in law.
7. In "Kirtikant D. Vadodaria v. State of Gujarat" reported in (1996) 4 SCC 479, the Hon'ble Supreme Court has explained the object behind section 125 of the Code of Criminal Procedure, thus:
"15. The point in controversy before us however is whether a 'stepmother' can claim maintenance from the stepson or not, having regard to the aims and objects of Section 125 of the Code. While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. ...................."
8. In my opinion, the stand taken by the petitioner that he has to maintain other family members is not a ground to refuse maintenance to his wife. It is admitted at Bar that son of the petitioner has now attained majority and, therefore, he shall not be entitled for maintenance by his father. Now, the petitioner has to pay Rs.7,000/- only as maintenance amount which compared to his take-home salary is 5 not excessive. The petitioner's wife is entitled to maintain herself according to his status and earnings.
9. In view of the aforesaid facts, I find no error in the judgment dated 27.05.2016 passed in Cr. Miscellaneous No.37 of 2012 and, accordingly, Cr. Rev. No.1199 of 2016 is dismissed.
(Shree Chandrashekhar, J.) R.K.