Jharkhand High Court
Avinash Kumar vs The State Of Jharkhand on 23 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 93 of 2016
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Avinash Kumar, son of Sri Ramdeo Singh, resident of Village-Garubigha,
PO-Dhanwa, PS-Narhat, District-Nalanda (Bihar) ... ... Petitioner
Versus
1. The State of Jharkhand
2. Smt. Jhunni Devi, wife of Sri Avinash Kumar, residing at Master Colony
Biharsarif, PO&PS-Laheri, District-Nalanda (Bihar)
... ... Opposite Parties
With
Criminal Revision No. 1375 of 2015
Avinash Kumar, son of Sri Ramdeo Singh, resident of Village-Garubigha,
PO-Dhanwa, PS-Narhat, District-Nalanda (Bihar) ... ... Petitioner
Versus
1. The State of Jharkhand
2. Smt. Jhunni Devi, wife of Sri Avinash Kumar, residing at Master Colony
Biharsarif, PO&PS-Laheri, District-Nalanda (Bihar)
... ... Opposite Parties
(Through V.C.)
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Deepankar Roy, Advocate
For the State : Mr. Bhola Nath Ojha, APP
[in Cr. Rev. No. 1375 of 2015]
For O.P. No.2 : Mr. Akhouri Avinash Kumar, Advocate
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Order No. / Dated: 23rd July, 2021
Criminal Revision No.93 of 2016 has been filed against
dismissal of Misc. Case No.03 of 2014 preferred by the husband under
section 127 of the Code of Criminal Procedure for reduction in the
maintenance amount awarded to his wife.
2. Criminal Revision No.1375 of 2015 has been filed against the
common judgment dated 19.09.2015 by which Misc. Case No.06 of 2013
filed by Jhunni Devi seeking enhancement of the maintenance amount has
been allowed.
3. The marriage of Avinash Kumar (hereinafter referred to as the
applicant) was solemnised with Jhunni Devi (hereinafter referred to as the
respondent) on 20.06.2002. After the marriage, the respondent stayed with
her husband in her matrimonial home. The husband got a job in BSF and he
was posted at Gandhinagar (Gujarat), but he did not take his wife there
alongwith himself. On an allegation that the applicant has refused to
maintain the respondent though he had sufficient income, Maintenance Case
No.65 of 2006 was filed by the respondent which was allowed and the
applicant was directed to pay monthly maintenance of Rs.3,000/- to his
wife, from the date of the order. It appears that the differences between the
husband and wife were not resolved and a criminal case was filed by the
respondent against her husband and his family members. The father of the
respondent approached the Deputy-Inspector General of Police, BSF and
gave an application regarding harassment and torture of his daughter at the
hands of her husband. Finally, the applicant was dismissed from service on
13.08.2013. It appears that in G.R No.188 of 2006 the husband and his
parents were convicted for the offences under section 498-A, 323 and 379 of
the Indian Penal Code and ¾ of the Dowry Prohibition Act, vide judgment
dated 18.12.2012.
4. Both parties have filed applications under section 127 of the
Code of Criminal Procedure - the husband seeking reduction while the wife
enhancement of the maintenance amount.
5. In the proceeding under section 127 of the Code of Criminal
Procedure, the applicant examined two witnesses - he was PW1. The
respondent has examined herself as OPW1. The respondent stated in the
Court that her husband is earning from business of auto-rickshaw and
agriculture to the tune of Rupees One lac per month; she was staying in a
rented house and paying monthly rent of Rs.2,000/- per month, though she
has filed certification from her landlord which was for rent of Rs.1800/-
vide Ext. A, and; the doctor has advised her to undergo some surgical
treatment.
6. Section 127 of the Code of Criminal Procedure authorises a
Magistrate to pass an order of alteration of monthly allowance for the
maintenance or interim maintenance ordered under section 125, on proof of
a change in the circumstances of any person who is either receiving
maintenance or paying maintenance. The wife has taken a plea of inflation,
and her rising expenses whereas the husband has taken a plea of reduction in
his income as he was dismissed from service. The order of maintenance
dated 15.09.2009 passed in Maintenance Case No.65 of 2006 was
challenged by the respondent in Criminal Revision No.917 of 2009 and the
said petition was dismissed by this Court. On dismissal of the criminal
revision petition filed by the respondent it can be safely inferred that the
amount of maintenance granted by the Court when the husband was in
service and had agricultural income was just and reasonable.
7. The learned Principal Judge, Family Court, Lohardaga has referred
to the judgment in "Ramesh Chander Kaushal v. Veena Kaushal" reported
in (1978) 4 SCC 70, "Chaturbhuj v. Sita Bai" reported in (2008) 2 SCC 316
and "Bhuwan Mohan Singh v. Meena" reported in (2015) 6 SCC 353.
However, there is no consideration by the learned Family Court Judge
regarding the effect of dismissal of the applicant from service which
definitely would have reduced his income - there is no discussion on merits
of the plea taken by the applicant in Misc. Case No.03 of 2014. In my
opinion, for granting an order of enhancement of the monthly maintenance
amount also the learned Family Court Judge was required to discuss this
aspect of the matter.
8. Accordingly, the order dated 19.09.2015 passed in Misc. Case
No.06 of 2013 and Misc. Case No.03 of 2014 is set-aside. The matter is
remitted back to the learned Family Court Judge for a fresh consideration on
the basis of the materials already on record. Keeping in mind the object
behind section 125 of the Code of Criminal Procedure, it is expected that the
learned Family Court Judge shall pass a final order within next three
months. On production of a copy of this order, the learned Family Court
Judge shall fix a date for final hearing of the criminal miscellaneous
petitions filed by the parties. The parties shall appear before the Court
concerned on 13.08.2021 when a date of final hearing shall be fixed by the
learned Family Court Judge. I.A. No.561 of 2016 filed in Criminal Revision
No.93 of 2016 stands disposed of.
(Shree Chandrashekhar, J.)
R.K.
