Jharkhand High Court
Jagjiwan Mochi vs State Of Jharkhand on 23 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 518 of 2012
Jagjiwan Mochi, son of Late Kaleshwar Mochi, resident of
Janwal, P.O. & P.S. Kisko, District Lohardaga
... ... Petitioner
Versus
1. State of Jharkhand
2. Shitli Devi wife of Jagjiwan Mochi, daughter of Late
Budhwa Mochi
3. Pramod Mochi son of Jagjivan Mochi
4. Doba Kumari daughter of Jagjiwan Mochi
5. Chotan Mochi son of Jagjiwan Mochi
SI. Nos. 3 to 5 being minor is represented by their
mother/opposite parties no. 2 being the natural and legal
guardian
SI. Nos. 2 to 5 are resident of village Badla, P.O. & P.S.
Senha, District Lohardaga ... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rajesh Kr. Mahtha, Advocate
For the State : Mr. Tapas Roy, A.P.P.
For private opp. parties : None
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Through Video Conferencing
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06/23.08.2021 Heard Mr. Rajesh Kumar Mahtha, learned counsel
appearing on behalf of the petitioner.
2. Heard Mr. Tapas Roy, learned A.P.P. appearing on behalf
of the opposite party- State.
3. Nobody appears on behalf of the private opposite parties.
4. This revision petition is directed against the order dated
19.05.2012 passed in Maintenance Case No. 02 of 2009 by the
learned Principal District Judge-cum-Principal Judge, Family
Court, Lohardaga, whereby the learned court has directed the
petitioner to pay maintenance of Rs. 2,500/-per month to the
opposite party No.-2 and Rs. 2,500/-per month to the opposite
party Nos.-3 to 5 from the date of filing of the petition i.e.
17.01.2009 along with litigation cost of Rs. 7,000/-.
5. The learned counsel appearing on behalf of the petitioner,
while challenging the impugned order dated 19.05.2012 passed
in Maintenance Case No. 02 of 2009 has submitted that the
petitioner is now in police service and the case of maintenance
was filed by opposite party no. 2- the wife. He submits that the
dispute between the petitioner and his wife took an ugly turn
when the third child was born and the specific case of the
petitioner before the learned court below was that his wife was
living in adultery. The learned counsel submits that considering
this aspect of the matter, the petitioner had also filed a case for
dissolution of marriage and in this background, a prayer was
made by the petitioner before the learned court below to
dismiss the petition for maintenance filed by his wife- the
present opposite party no. 2.
6. The learned counsel for the petitioner has further
submitted that at the time of filing of the maintenance case, the
age of the three children were 11 years, 6 years and 3 years and
at the time of deposition before the learned court below, their
age was 14 years, 9 years and 6 years respectively as recorded
in paragraph 9 of the impugned order. The learned counsel has
submitted that the minor children have now grown up and
accordingly, they may not be entitled for maintenance any
more.
7. During the course of argument, upon a specific query
made by this Court, the learned counsel submits that the
petitioner has lost the case filed for dissolution of marriage. He
has also submitted that the petitioner has duly complied with
the order dated 25.02.2013 passed by this Court. The learned
counsel has also submitted that the maintenance amount was
being deducted by the police department from the salary of the
petitioner, but at the same time, the deduction was on a higher
side for the reasons unknown to the present petitioner.
8. The learned counsel appearing on behalf of the opposite
party- State, on the other hand, has submitted that the
application for maintenance was decided on the basis of
evidences on record and mere allegation that the third child
was born when the opposite party no. 2 was living in adultery,
is not sufficient. He has also submitted that even the name of
the person with whom the opposite party no. 2 was alleged to
have been living in adultery, has not been disclosed. He has
also submitted that no prayer was ever made before the learned
court below for any kind of examination of DNA test etc., if the
paternity of the third child was under dispute.
9. The learned A.P.P. also submitted that so far as the
subsequent development i.e. the present age of the children is
concerned, the petitioner may take appropriate steps for the
purposes of modification of the maintenance order and so far as
this Court is concerned, the legality of the impugned order may
only be examined.
10. After hearing the learned counsel for the parties, this
Court finds that it is not in dispute that the present opposite
party no. 2 is the legally wedded wife of the petitioner and the
petitioner is at present working with the police department. It is
also not in dispute that after the marriage, three children were
born and the paternity of first two children is admitted by the
petitioner. However, he has raised a dispute in connection with
paternity of the third child.
11. This Court further finds that no steps were ever taken by
the petitioner for any kind of paternity test nor the name of the
adulterer was disclosed. Admittedly, the petitioner has lost the
case filed by him for dissolution of marriage. This Court also
finds that the case of the wife was supported by four witnesses
and the present petitioner also got two witnesses examined.
This Court finds that the learned court below has examined the
evidences on record and has recorded its finding at para 18, 19
and 20 as follows:
"18. From going through the evidence of the petitioner it is
evident that the petitioner has been married with the O.P. for
about 17-18 years ago and at the time of marriage the opposite
party was engaged merely in agriculture work for about 10 years
the couple had got no dispute and during this period two children
namely Pramod Mochi and Deba Kumari have been born to them.
Thereafter the opposite party joined in police service and had gone
for training at different place i.e. in Punjab and during this period
the children born between the party is said to be disputed and the
O.P. has denied his paternity over the said child.
19.The case of maintenance the question of legitimate or
illegitimate children can not be gone rather it is to be seen as to
whether the husband is liable to payment or not. In this case, the
O.P. has not disputed about two children and it has also come into
evidence that he is ready to keep the said both two child. However
during the cross examination O.P. no.1 in para 12 has stated that
the O.P. i.e. the husband has not paid maintenance amount to his
wife i.e. the petitioner and her children and thus for about 7 years
he has fully neglected his wife and all the three children. Had the
intention of O.P. to keep his wife and children he would have
taken proper recourse but he filed Guardian case only no. 3/2008
only after ex-parte judgment was passed in M.T.S. case no. 9/2005
which clearly shows that he i.e. O.P. wants to defeat the case of the
petitioner. The O.P. ought to have taken care of at least two
children who are studying in the school at village Badla. Thus the
assertion of the O.P. to keep two children is nothing but an eye
wash and only to defeat the claim of the petitioner so that he may
not pay any maintenance to his wife or children by taking the plea
of adultery against his bonafide wife i.e. petitioner.
20. It has came into evidence that O.P. is drawing salary 12,000/-
to 14,000/- per month. It has also come into evidence that
petitioner was married with the O.P. in May 1994 and out of their
matrimonial wedlock three children have been born to them who
are Pramod Mochi, Deba Kumari and Chhotan Mochi."
12. This Court finds that the learned court below had
directed the petitioner to pay maintenance of Rs. 2500/- per
month to the wife and Rs. 2500/- for her children namely,
Pramod Mochi, Deba Kumari and Chotan Mochi i.e. total Rs.
5,000/- per month from the date of filing the petition i.e. on
17.01.2009. The petitioner was also directed to pay litigation
cost amounting to Rs. 7,000/- to the wife i.e. opposite party no.
2 herein. The petitioner was directed to pay the current
maintenance amount from the each succeeding month by the
calendar date of 10th day of each month regularly, and it was
indicated that failing such payment, the present opposite
parties will be at liberty to realize the same through the process
of law. The petitioner was to pay maintenance amount to his
eldest son namely Pramod Mochi who was found to be 14 years
at the relevant point of time, till he attains majority, but the
petitioner was bound to maintain his daughter until she is
married. This Court finds that by virtue of the interim order,
following directions were passed by this Court and it has been
submitted by the petitioner that the same has already been
complied with:
"This application will be heard.
Issue Notice to the O.P. Nos. 2 to 5 by registered post
with A.D. and also by ordinary process for which requisites etc.
must be filed within a period of one week failing which this
application shall stand dismissed without further reference to the
Bench.
Call for the Lower court records.
During the pendency of this application the petitioner
shall deposit a sum of Rs. 2,000/- per month as part of the current
maintenance from March 2013 in the Court below on or by 15th
day of each succeeding month.
It is further directed that the petitioner will deposit the
arrears at the rate of Rs. 2,000/- (two thousand) per month from
the date of the impugned order i.e. 19.05.2012 which amounts to
Rs. 20,000/- (twenty thousand) in two equal installments within a
period of six months in the court below.
The O.P. No. 2, namely Shitli Devi will be at liberty to
withdraw the said amount and trial Court after verifying her
identity, shall release the same."
13. Considering the facts and circumstances of this case and
after going through the impugned order as well as the materials
on record, this Court does not find any illegality, perversity or
irregularity in the impugned order and no material illegality or
perversity as such has been pointed out by the learned counsel
for the petitioner calling for any interference in revisional
jurisdiction. This Court does not find any merit in the present
petition and accordingly, it is dismissed.
14. However, it is made clear that if there is any subsequent
development (i.e. post passing of the impugned order) it is
certainly open to the petitioner to move appropriate petition
under Section 127 of the Code of Criminal Procedure before the
learned court itself and no pronouncement on any subsequent
development can be made by this Court in revisional
jurisdiction while examining the legality and validity of the
impugned order.
15. The interim order dated 25.02.2013 stands vacated and
the petitioner is directed to ensure payment of the differential
amount which has accrued till today within a period of six
months by depositing the same before the learned court below,
failing which it will be open to the opposite parties to proceed
in accordance with law.
16. Pending interlocutory applications, if any, are closed.
17. Let the Lower Court Records be immediately sent back to
the court concerned.
18. Let a copy of this order be communicated to the learned
court below through 'FAX'.
(Anubha Rawat Choudhary, J.)
Pankaj
