Jharkhand High Court
Laxman Oraon Son Of Kaila Uraon vs The State Of Jharkhand on 1 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 520 of 2012
Laxman Oraon son of Kaila Uraon, Resident of & P.O.-
Makhani, P.S.- Rajmahal, District- Sahibganj
... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Rupa Devi, Daughter of Late Jhaangal Uraon, alleged wife of
Laxman Uraon, At Present, resident of Kelabari, P.O.-
Makhani, P.S.- Jirwabari, District- Sahibganj
... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. J.P. Jha, Senior Advocate
Mr. Aishwarya Prakash, Advocate
For the State : Mr. Arup Dey, A.P.P.
For O.P. No.2 : Mr. Sudhanshu Shekhar Choudhary, Adv.
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Through Video Conferencing
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10/Reserved on 06.09.2021 Pronounced on 01.12.2021
1. Heard Mr. J.P. Jha, the learned Senior counsel appearing
on behalf of the petitioner alongwith Mr. Aishwarya Prakash,
Advocate.
2. Heard Mr. Sudhanshu Shekhar Choudhary, the learned
counsel appearing on behalf of Opposite Party No.2.
3. Heard Mr. Arup Dey, the learned A.P.P. appearing on
behalf of Opposite Party-State.
4. The petitioner has preferred the present criminal revision
application for setting aside the Judgment dated 23.02.2012
passed by the learned Principal District Judge-cum-Principal
Judge (Family Court), Sahibganj in Maintenance Case No. 18 of
2006, whereby and whereunder the application under Section
125 of Cr.P.C. filed by the Opposite Party No.2-Rupa Devi was
allowed and the petitioner was directed to pay monthly
maintenance allowance @ Rs.3,000/- per month to the Opposite
Party No.2 with effect from the date of filing of the application
i.e. 12.06.2006 by 10th day of each calendar month and he was
further directed to pay the entire arrears of the maintenance
allowance within 60 days from the date of the order, failing
which the Opposite Party No.2 was given the right to recover
the same through the process of law.
Arguments on behalf of the petitioner
5. Learned Senior counsel appearing on behalf of the
petitioner submitted that the proceeding in connection with
grant of maintenance under Section 125 of Cr.P.C is a summary
proceeding and strict rule of evidence will not apply to such
proceedings. He submitted that the evidence of P.W.-1, the
mother of the applicant, has not been taken into consideration
by the learned court below and accordingly, the impugned
judgment suffers from non-consideration of the material
evidences on record.
6. Learned Senior counsel referred to the evidences of
O.P.W.-5, the petitioner and O.P.W.-6, the Advocate who
claimed to have prepared the affidavit dated 15.07.2002 of P.W.-
1 whose photocopy was filed before the learned court below as
enclosure to evidence on affidavit of O.P.W.-6. He submitted
that the said affidavit is related to the panchayati held on
15.07.2002 in which there was customary divorce called 'chora-
chori' between the petitioner and Opposite Party No.2. He also
referred to Section 63(2) of the Evidence Act and submitted that
in view of Section 63(2) of the Act, a photocopy of the affidavit
is admissible in evidence as the original of the same was
retained by the mother of the Opposite Party No.2.
7. Learned Senior counsel submitted that these aspects of
the matter have not been properly considered by the learned
court below and accordingly, the impugned order passed by
the learned court below is perverse and is fit to be set aside.
8. Learned Senior counsel, on instructions from the
petitioner, also submitted that the petitioner has complied with
the order dated 25.02.2013 passed by this Court relating to
payment of the monthly maintenance allowance @ Rs.2,000/-
per month to the Opposite Party No.2 and the arrears thereof
from the date of the impugned order dated 23.02.2012. But this
submission was strongly denied by the learned counsel
appearing on behalf of the Opposite Party No.2.
Arguments on behalf of the Opposite Parties
9. Learned counsel appearing on behalf of the Opposite
Party No.2, on the other hand, vehemently opposed the prayer
and submitted that the learned court below has considered all
the materials on record including the evidence of P.W.-1 and
has also discussed the photocopy of the so-called affidavit
dated 15.07.2002 and has rejected the same by a well-reasoned
judgment. He submitted that the affidavit was never produced
in original before the learned court below and a photocopy of
an affidavit cannot be said to be a document prepared by the
same process. He submitted that the primary evidence has not
been produced.
10. He also submitted that the marriage between the
petitioner and the Opposite Party No.2 is admitted, but a plea
has been taken by the petitioner that there was 'chora-chori'
(divorce) between the petitioner and the Opposite Party No.2 in
the Panchayati held on 15.07.2002. He submitted that all the
materials on record have been properly considered by the
learned court below and there is no perversity or illegality in
the impugned judgment granting maintenance allowance and
accordingly, the same does not call for any interference.
11. Learned A.P.P. appearing on behalf of the State also
opposed the prayer of the petitioner and submitted that the
impugned judgment does not suffer from any illegality or
perversity and does not call for any interference.
12. During the course of argument, the learned counsel
appearing on behalf of the petitioner did not dispute that the
so-called affidavit dated 15.07.2002, which is being heavily
relied upon by the petitioner stating that the same indicates that
there was divorce between the petitioner and Opposite Party
No.2, is certainly not an affidavit executed by the Opposite
Party No.2, rather it is an affidavit alleged to have been
executed by the mother of the Opposite Party No.2.
Findings of this Court
13. After hearing the learned counsel for the parties and
going through the impugned judgment and the materials on
record, this Court finds that on 12.06.2006, the Opposite Party
No.2 filed an application under Section 125 of Cr.P.C. for grant
of monthly maintenance stating further that she was married to
the petitioner on 06.05.2001 and after the marriage, she went to
her matrimonial house and lived there as husband and wife
and the marriage was consummated at Village- Makhani, P.S.-
Rajmahal, District- Sahibganj and she lived with the petitioner
till 15.06.2002. Thereafter, both came at her parental house
where the petitioner left her and since then, the petitioner did
not take care and refused to maintain her till the month of May,
2006. The Opposite Party No.2 approached the petitioner
through her parents and requested for bidayagi and to maintain
her, but the petitioner refused and lastly, on 01.06.2006, the
petitioner again refused to maintain her. It was further stated
that the monthly income of the petitioner was more than
Rs.5,000/- and he is a government servant. The Opposite Party
No.2 prayed for grant of monthly maintenance allowance @
Rs.3,000/- per month.
14. The petitioner appeared and filed his show cause stating
that both the parties are Scheduled Tribe and are governed by
the customs prevalent in their community. He further stated
that the marriage was solemnized in the year 2001 and after the
marriage, the Opposite Party No.2 went to her matrimonial
house and after two days, she returned to her parental house.
After four days, the petitioner went to her parental house, but
she did not return to her matrimonial house and bidayagi could
not take place and thereafter, the relation between them became
strained and on 15.07.2002, the movable property given on the
occasion of marriage ceremony was returned to the Opposite
Party No.2 and the relation between them was broken up and
thereafter, there is no relation of husband and wife. The
petitioner further stated that since the time of marriage, there
was strained relation between them and the Opposite Party
No.2 was not ready and willing to live with him and divorce
between them has taken place on 15.07.2002. He further stated
that in the year 2006, he got a job in JAP-09 and thereafter, the
Opposite Party No.2 developed greedy eyes and feelings and
wanted to squeeze money from him and thereafter, she filed the
application under Section 125 of Cr.P.C.. He stated that when
the divorce has already taken place mutually, an application
under Section 125 of Cr.P.C. is not maintainable and prayed for
rejection of the same.
15. The applicant examined altogether three witnesses in
support of her case. P.W.-1 is Sudamiya Mosomat who is the
mother of the applicant, P.W.-2 is Mahgu Mandal and P.W.-3 is
Rupa Devi who is the applicant herself. On the other hand, the
petitioner examined altogether six witnesses. O.P.W.-1 is Jagan
Nath Pramanik, O.P.W.-2 is Bishnu Deo Oraon, O.P.W.-3 is
Surya Narayan Upadhyay, O.P.W.-4 is Chhedi Munda, O.P.W.-
5 is Laxman Uraon who is the petitioner himself and O.P.W.-6
is Surender Mahto.
16. This Court finds that P.W.-3 is the applicant herself and,
in her evidence, she deposed that she was married to the
petitioner as per Hindu rites and customs in the year 2001 and
she went to her matrimonial house and lived there peacefully
for one year and thereafter, the petitioner left her in her father's
house and thereafter, neither did he take care of her, nor paid
any maintenance to her. There was demand of Rs.20,000/- and
when it was not fulfilled, she was not allowed to live in her
matrimonial house. She further deposed that the petitioner is in
government service in JAP-09 on the post of sweeper and earns
sufficiently, but he neglected her and also failed to maintain
her. She further stated that she has no income and she is fully
dependent upon her mother. In her cross-examination, she
denied that any mutual divorce had taken place between
husband and wife and she also denied that her mother had
taken Rs.9,000/-. She further stated that the petitioner got his
job in the year 2004 and is posted at Hazaribag.
17. It has been argued by the learned counsel for the
petitioner that the evidence of P.W.-1, the mother of the
applicant, has not been taken into consideration and on this
ground also it has been submitted that the impugned order is
perverse. This Court finds that the learned court below at para 7
of the impugned order has discussed in details the evidence of
the wife who was examined as P.W-3 and recorded that it was
clear that the marriage between the petitioner and opposite
party no. 2 was solemnized in the year 2001 and the wife was
neglected by her husband and maintenance allowance was not
paid to her. The learned court below at para 8 of the impugned
order has recorded that likewise P.W-2 and P.W-1 have also
supported the same and P.W-1 has denied about the panchayati
on 15.07.2002 and also denied that any mutual divorce had
taken place between the parties. It has also been recorded in the
same paragraph that P.W-2 has supported that the P.W-3 was
neglected by the present petitioner and she is living in her
mother's house and that marriage was solemnized in the year
2001. Thus, this Court finds that the evidence of the P.W-1, the
mother of the applicant lady was duly considered by the
learned court below who is said to have supported the evidence
of P.W-3 as above. Further, the learned counsel of the petitioner
has not pointed out any material evidence of P.W-1 which was
material and could have a bearing in the matter but was not
considered by the learned court below. Accordingly, argument
of the petitioner that the evidence of the P.W-1, the mother of
the petitioner has not been considered, is devoid of any merit,
hence rejected.
18. The learned court considered the evidence of the
witnesses of the opposite party (the present petitioner) and
recorded that it has been admitted by the petitioner himself that
marriage was solemnized between the parties in the year 2001
but he claimed that there was divorce between them on
15.07.2002 and an affidavit to this effect was prepared by P.W-1,
the mother of the applicant. The learned court also considered
the evidence of O.P.W-6, an advocate, who has stated that an
affidavit was prepared on 15.07.2002 and in the affidavit thumb
impression was put by P.W-1, and P.W-1 did not approach him
for evidence and 15 years have elapsed from the date of the
affidavit, he failed to identify P.W-1, she was not known to him
personally and the relevant register of the year 2002 regarding
affidavit was not produced. Admittedly, the original affidavit
was not filed and only photocopy was filed. The learned court
below also recorded that no chit of paper was produced
regarding panchyati said to have been held on 15.07.2002. After
considering the materials on record, the learned court below
disbelieved the story of divorce between the parties.
19. The learned court below considered the materials on
record and recorded that it is clear that the marriage was
solemnized in the year 2001 and after the marriage, Rupa Devi
went to her matrimonial house and lived there as husband and
wife and there is no chit of paper regarding panchayati dated
15.07.2002 and no paper signed by Rupa Devi has been brought
on record to show that matrimonial relation has been broken
down. The xerox of affidavit dated 15.07.2002 of Mosstt.
Sudamiya (P.W-1) has been filed, but the same has not been
proved in accordance with law.
20. The learned court below also held that Rupa Devi (P.W-3)
has been able to establish that she is legally married wife of
Laxman Uraon and she has been neglected by her husband
without any reasonable cause and no maintenance allowance
has been received by her since 2002. The learned court below
found that the petitioner is in government service and earns
Rs.11,200/- per month and he is legally bound to maintain his
wife. The learned court below allowed the application filed
under Section 125 of Cr.P.C. with the directions as mentioned
above. The finding of the learned court below that, neither the
panchyati dated 15.07.2002 nor the so-called divorce on
15.07.2002 has been proved, is based on sound appreciation of
evidence on record. The findings are neither perverse nor illegal
nor suffer from any material irregularity calling for any
interference in revisional jurisdiction of this court.
21. The learned court below has rightly held at para 13 of the
impugned order as follows: -
"13. And section 125 Cr.P.C. does not finally determine the
right to the parties and the said section has been enacted with a
view to provide summary remedy for providing maintenance to
wife, children and parents and from the perusal of the evidence
available on the record if taken into consideration, court
concerned is satisfied with regard to the performance of
marriage in a proceeding u/s 125 Cr.P.C. which are summary
in nature but strict proof of performance, and essential right is
not required and aggrieved party against the order of
maintenance u/s 125 Cr.P.C. can approached the Civil Court
for declaration of status as the order passed u/s 125 Cr.P.C.
does not finally determined the right of the parties and the same
view has been expressed in the case of Dwarika Prasad Rai Vrs.
Bidut Prabha disshit, A.I.R. 1999, Supreme Court, 445."
22. In view of the aforesaid findings, the present criminal
revision application is hereby dismissed.
23. It is observed that it will be open to either party to
approach the Civil Court for declaration of status as this order
upholding the impugned order passed u/s 125 Cr.P.C. does not
finally determine the right of the parties.
24. It has been claimed by the learned counsel appearing on
behalf of the petitioner that his client has complied the order
dated 25.02.2013, whereby during the pendency of this
application, the petitioner was directed to deposit a sum of Rs.
2,000/- per month by 10th of every succeeding month and also
the arrears @ Rs. 2,000/- per month from the date of the
impugned order dated 23.02.2012 and to deposit the entire
amount of the arrears in the court below in four installments by
uniform period within one year.
Since the opposite party has disputed the aforesaid submission
advanced on behalf of the petitioner regarding compliance of
order dated 25.02.2013, it will be open to the parties to satisfy
the learned court below on the point of payment or otherwise
pursuant to the order passed by the learned court below or
order dated 25.02.2013 passed by this Court and the learned
court below shall proceed accordingly. It will be open to the
opposite party No.-2 to take all steps in accordance with law for
payment of maintenance in terms of impugned order, both
arrears and current.
25. Interim order, if any, stands vacated.
26. Pending interlocutory application, if any, is dismissed as
not pressed.
27. Let the lower court records be sent back immediately to
the court concerned.
28. Let a copy of this order be communicated to the learned
court below through "FAX/Email".
(Anubha Rawat Choudhary, J.)
Saurav/Mukul
