Jharkhand High Court
Binod Kumar Singh vs Smt. Sushma Devi on 5 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 20 of 2021
Binod Kumar Singh, Aged about 47 Years, Son of Shubhkaran Singh,
Resident of Sarowar Nagar, Devi Mandup Road, P.O. Hehal, P.S.
Sukhdeonagar, District Ranchi ... ... Petitioner
Versus
1. Smt. Sushma Devi, W/o Binod Kumar Singh
2. Prateek Kumar, S/o Binod Kumar Singh (represented through his
mother Smt. Sushma Devi both R/o Radhanagar, Pandra, P.O.
Hehal, P.S. Sukhdeonagar, Dist. Ranchi
... ... Opp. Parties
With
Cr. Appeal (S.J.) No. 492 of 2016
Binod Kumar Singh, Son of Shubhkaran Singh, Resident of Mohalla-
Sarowarnagar, Hesal, P.O. Hehal, P.S. Sukhdeonagar, District Ranchi
Jharkhand ... ... O.P./Appellant
Versus
1. State of Jharkhand
2. Sushma Devi, D/o Bajrangi Singh, R/o Radhanagar, Pandra, P.O.
Hehal, P.S. Sukhdeonagar, Dist. Ranchi
... ... Petitioner/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
(Appearance in Cr. Revision No. 20/2021)
For the Petitioner : Mr. Binod Kumar Singh, (in person)
For the Private Respondents : Mr. Yogesh Modi, Amicus
(Appearance in Cr. Appeal (S.J.) No. 492 of 2016)
For the Petitioner : Mr. Binod Kumar Singh, (in person)
For the Private Respondents : Mr. Yogesh Modi, Amicus
For the State : Mr. Jitendra Pandey, Advocate
---
25/05.12.2022
1. Heard Mr. Binod Kumar Singh appearing in person on behalf of the
petitioner in the criminal revision and the appellant in criminal appeal.
2. Heard Mr. Yogesh Modi, learned counsel appearing as Amicus on behalf of
both the private respondents in both the cases.
3. Heard Mr. Jitendra Pandey, learned counsel appearing on behalf of the State
in Cr. Appeal.
4. Heard Ms. Sushma Devi, appearing in person for the opposite parties/private
respondents.
5. Criminal Revision No. 20 of 2021 has been filed against the judgment dated
15.12.2020 passed in Original Maintenance Case No. 142/2007 under
Section 125 of Cr. P.C. by the learned Principal Judge, Family Court,
Ranchi, whereby the petition filed by the private opposite parties has been
allowed and the petitioner has been directed to pay maintenance of Rs.
6,000/- per month to the opposite party claimed to be the wife and Rs.
4,000/- per month to the opposite party claiming to be the son with a further
direction to pay the arrears of maintenance within a period of 4 months from
the date of the passing of the judgment.
6. So far as the Criminal Appeal is concerned, the same has been filed
challenging the order dated 06.04.2016, whereby the petition dated
19.03.2016 filed on behalf of the present appellant (opposite party before the
learned court below) for initiating a proceeding under Section 340 of Cr.
P.C. alleging filing of forged and fabricated documents before the learned
court below, has been rejected.
Background of the case:-
7. Both the cases arise out of Original Maintenance Case No. 142/2007 and
therefore they have been tagged and have been heard together.
8. A petition under Section 125 of Cr.P.C. was filed by Sushma Devi against
the petitioner for grant of maintenance for herself @ Rs. 2,000/- per month
and @ Rs. 1,500/- per month for her son who was the co-applicant before the
learned court below. The case was filed on 21.11.2007.
9. Sushma Devi claimed herself to be the legally wedded wife of the petitioner
and claimed that the marriage was solemnized on 16.08.2003 in Kali Mandir
situated at Toliganj, Kolkata in presence of parties and friends under Hindu
Customary rites and the said marriage was registered in the office of
Shyamal Ghosh, Daftidar, Registrar Hindu Marriage, North Station Road,
Agrapara, Kolkata and there were three witnesses to the marriage. The
application for registration was submitted with signature of both the parties
in the said office on 06.09.2003.
10. After marriage, they started living as husband and wife and were blessed
with a son, Prateek Kumar. She had lived in her in-laws house for one and a
half year and thereafter there was a demand of dowry and she was subjected
to physical and mental torture and in order to save her life, she left her
matrimonial home in the month of July, 2005 and thereafter she lived at her
father's house up to two years and four months. She had also lodged one
case being Sukhdeonagar P.S. Case No. 209/2004 on 28.04.2004 under
Section 498-A of the Indian Penal Code and Section 3/4 of Dowry
Prohibition Act and thereafter petitioner started contacting her for
withdrawal of the case and ultimately the petitioner consoled her by giving
in writing to the police authority that in case applicant withdrew the case he
will not solemnize second marriage. It was also mentioned that undertaking
was given voluntarily and without pressure.
11. Thereafter the case was finalized and the police submitted the final form and
after that the present petitioner again threatened her for dowry and
solemnization of second marriage for which another case being
Sukhdeonagar P.S. Case No. 336 of 2006 under Sections 498-A, 494 was
lodged. The charge-sheet was submitted and the said criminal case is
pending. Further case of Sushma Devi was that she had also given one
motorcycle, chain and finger ring etc. and also gave money for construction
of boundary and gave Rs. 2,00,000/- to the petitioner and his father who
demanded money for construction of house.
12. The applicant made a specific statement in her petition for maintenance that
she has no source of income to maintain her and her child who, at that point
of time was only one and a half years old. She also made a statement that the
petitioner has some rental income and also Rs. 10,000/- per month from his
profession of Advocacy and has sufficient income from ancestral property.
13. It appears that the proceeding was directed to be proceeded ex-parte without
waiting for the service report, however, the order was recalled and thereafter
the petitioner filed his show-cause on 16.06.2008. The show cause filed by
the petitioner indicates that the petitioner had denied that Sushma Devi was
his legally wedded wife and also that Sushma Devi was unable to maintain
herself. It was the specific case of petitioner that no marriage at all was
solemnized on 16.08.2003 and he also questioned the registration of
marriage at Kolkata on 20.10.2003. It was denied that the petitioner ever
lived with Sushma Devi as his wife and so there was no question of having
any child out of such relationship. The various medical reports of Sushma
Devi were also referred to submit that Sushma Devi having been allegedly
turned out from the matrimonial home and has been residing in her parental
house since July, 2005, there was no occasion or circumstance to have a
child out of the alleged wedlock on 15.07.2006. This was over and above the
fact that the marriage as well as the relationship with Sushma Devi was ex-
facie denied by the petitioner.
14. It was further the case of the petitioner that in spite of filing of criminal case
under Section 498-A and 3/4 of the Dowry Prohibition Act by Sushma Devi
the police never attempted to apprehend the petitioner. The petitioner was
forced to sign aforesaid undertaking while in police custody and he was
made to sign with backdate and signature was obtained when the subsequent
F.I.R. dated 24.05.2006 was filed. It is the specific case of the petitioner that
he was already married on 06.05.2001 and had a living wife and therefore
there is no question of 2nd marriage. The entire allegation of marriage, living
as husband and wife and birth of a child out of such relationship has been
totally denied. It has also been mentioned in the show-cause that Sushma
Devi was the widow of one B.S.F. employee and had sufficient means to
maintain herself and her son.
15. So far as the case of Sushma Devi that she had no source of income is
concerned, the same was also categorically denied by stating that Sushma
Devi was receiving family pension from the government in her bank account
and she was also employed under the government from time to time. It was
also claimed by the petitioner in his show cause reply that he was
comparatively young lawyer and therefore did not have the income of Rs.
10,000/- and he could meet his requirement from the family income but had
no surplus income to be diverted to Sushma Devi. Rental income was also
denied by the petitioner.
Arguments of the petitioner appearing in person:
16. The petitioner appearing in person has referred to the provisions of Section
125 Cr. P.C. to submit that the applicant was required to plead and prove
three ingredients for claiming maintenance;
(a) she was legally wedded wife,
(b) She was unable to maintain herself,
and
(c) the person from whom she was claiming maintenance was
having sufficient means.
17. The petitioner also submits that the onus to prove the aforesaid facts was
upon claimant as per Sections 101, 102 and 103 of the Evidence Act. The
petitioner in person has submitted that none of the three ingredients were
proved before the learned court below and therefore the impugned order is
ex-facie perverse and is fit to be set-aside. The petitioner has also submitted
that in the initial petition filed by Sushma Devi, the date of marriage was
shown as 20.10.2003, but subsequently a petition for amendment was filed
and a totally new case was sought to be made out by Sushma Devi by stating
that the date of marriage is 16.08.2003 at Kalimandir, Toliganj, Kolkata
which was registered on 20.10.2003 for which application for registration of
marriage was filed on 06.09.2003.
18. The petitioner by submitting that Sushma Devi was not his wife has
submitted that the date of marriage on 16.08.2003 as claimed in the amended
petition was itself an impossibility in view of the official records where
Sushma Devi was working under the government at the relevant point of
time. He submits that the attendance register of Sushma Devi was exhibited
as Exhibit-B and one letter exhibit-K dated 15.05.2012 was also exhibited
which was issued by Smt. Manisho Joseph Tigga in connection with the
attendance of Sushma Devi in office at Ranchi on 16.08.2003. He submits
that the attendance on 16.08.2003 at Ranchi by Sushma Devi is an
undisputed fact from the records of this case. The petitioner has also
submitted that no document with regard to marriage on 16.08.2003, much
less any photograph or any witness had been produced as evidence of
marriage, that too at Kalimandir, Toliganj, Kolkata. He has also submitted
that it has not been proved that any ceremony with regard to the marriage
was conducted. Even the pundit performing the marriage or the persons
attending the marriage have not deposed before the learned court below to
substantiate the marriage on 16.08.2003. He submits that there is no cogent
evidence to establish marriage on 16.08.2003 much less marriage at
Kalimandir, Toliganj, Kolkata.
19. The petitioner in person has also submitted that so far as the registration of
marriage on 20.10.2003 is concerned, though the same refers to the date of
marriage as 16.08.2003, but the place of marriage has been shown to be a
totally different place i.e., 65/4 Graham Road, Toliganj, Kolkata and it has
come in the cross-examination of Sushma Devi that she had never visited the
said address. The petitioner in person has submitted that the case of Sushma
Devi is demolished and falsified by her own pleadings and materials. The
claim of marriage on 16.08.2003 at Kalimandir, Toliganj, Kolkata is totally
contradictory to the place of marriage shown in the marriage certificate. He
also submits that there is no explanation from the side of Sushma Devi as to
why the marriage was solemnized at Kolkata in a temple, although both the
parties are residents of Ranchi. The petitioner has also referred to certain
discrepancies in connection with the address of Sushma Devi and that of the
petitioner in the certificate of marriage. It is submitted by the petitioner in
person that there was glaring material contradictions going to the root of the
matter which has not been looked into by the learned court below while
passing the impugned order granting maintenance.
20. The learned counsel has referred to the judgments passed by the Hon'ble
Supreme Court reported in (1988) 1 SCC 530 (Yamunabai Anantrao Adhav
versus Anantrao Shivram Adhav and another) para 4 and 8 to submit that
wife in Section 125 of Cr. P.C. means only a legally wedded wife. He has
also referred to the judgment passed by the Hon'ble Supreme Court reported
in (2005) 3 SCC 636 (Savitaben Somabhai Bhatiya versus State of Gujarat
and others) to submit that it has been held that there is no scope to include
the woman not lawfully married, within the expression of 'wife'. The
petitioner in person has also referred to the judgment passed by the Hon'ble
Supreme Court reported in (2019) 13 SCC 796 (Lalita Toppo versus State of
Jharkhand and another) to submit that where there is no marriage,
maintenance cannot be claimed under Section 125 Cr. P.C. The petitioner in
person submits that even if the alleged marriage certificate is assumed to be
true, though not admitted, by the petitioner, it did not prove that the marriage
was solemnized on 16.08.2003 at Kalimandir, Toliganj, Kolkata, rather the
description given in the schedule A and C to the marriage certificate is
totally different from the pleadings and averments made by Sushma Devi in
the original application and the amended application. The oral evidence led
by Sushma Devi is also contrary to the documentary evidence.
21. The petitioner in person further submits that without prejudice to the dispute
in connection with the marriage registration certificate, the law is well-
settled that the marriage registration certificate itself is not a proof of
marriage unless the marriage is proved. He has referred to the following
judgments: -
(A)1974 SCC Online Cal 138 to submit that it has been held unless the
marriage, i.e. the celebration and performance of proper ceremony
including Satpati and kanyadan are proved, the marriage cannot be
said to be valid.
(B) 1998 SCC Online CAL 24, to submit that there is condition and
requirement of residence of at least one of the parties for a period of
not less than 30 days in the district where the marriage is to
solemnized and if such a condition is not complied, the marriage
cannot be registered.
(C) 1992 SCC Online MP 161, to submit that it has been held that
certificate of marriage is not effective unless the marriage is validly
performed between the parties.
22. The petitioner appearing in person, submits that the marriage is said to have
been performed on 16.08.2003 and mere issuance of marriage certificate
subsequently does not prove the marriage. It was for Sushma Devi to prove
the marriage claimed to have been performed on 16.08.2003. He submits that
there is no evidence regarding marriage having been performed on
16.08.2003. The petitioner in person has also submitted that the learned court
below had committed gross error in appreciating the evidence of the PWs
and has failed to consider that on 16.08.2003 and 20.10.2003, Sushma Devi
was in her office at Ranchi and therefore, the marriage on 16.08.2003 and its
registration on 20.10.2003 were not possible.
23. Learned counsel appearing in person has also submitted that so far as son of
Sushma Devi is concerned, as the marriage was not proved therefore there
can be no presumption that son of Sushma Devi was his son. He has also
submitted that merely because the petitioner did not agree for DNA Test, the
same by itself cannot lead to any conclusion that the son of Sushma Devi
was the son of the petitioner.
24. However, during the course of argument, it is not in dispute that at one point
of time the petitioner agreed for DNA Test and for that appropriate order was
also passed by the learned court below for the presence of the parties for
DNA Test before the appropriate hospital for taking the sample, but
ultimately the petitioner did not turn out for which he has no explanation.
25. Petitioner in person has submitted that he had no access to Sushma Devi as it
is her case that she left her matrimonial home in July, 2005 and therefore
there was no question of the child to be the son of the petitioner.
26. The petitioner appearing in person has submitted that Sushma Devi had
substantial income and therefore it cannot be said that she was unable to
maintain herself and the conduct of Sushma Devi goes to the root of the
matter and her claim for not able to maintain herself and having no income
was falsified before the learned court below. Petitioner in person also
submitted that during the course of proceedings before the learned court
below, Sushma Devi had admitted that she was getting Rs. 7,600/- per month
as family pension which was apparent from order-sheet dated 31.08.2015.
He submits that Sushma Devi was working with the government, she was
also getting her remuneration but the learned court below failed to appreciate
that Sushma Devi had sufficient means to maintain herself. He has also
submitted that the judgment of Rajnesh Vs. Neha reported in (2021) 2 SCC
324 was already pronounced much before passing of the impugned order on
15.04.2022 which was made applicable not only in the fresh cases but also in
the pending cases. As per the direction of the Hon'ble Supreme Court,
parties were required to give their declaration regarding their income, assets
and liabilities. He submits that this exercise was not undertaken by the
learned court below in spite of the binding directions issued by the Hon'ble
Supreme Court.
27. Petitioner in person also submits that there was no iota of evidence with
regard to the income of the petitioner, but in spite of that the learned court
below held that the petitioner was having substantial income. He further
submits that although maintenance of Rs. 2,000/- for Sushma Devi and Rs.
1,500/- for her son was prayed for, but the learned court below granted
maintenance of Rs. 10,000/- per month from the date of filing of the
application i.e., since 2007. It is submitted that the grant of maintenance vide
impugned order to the extent of Rs. 10,000/- per month is ex-facie perverse
and is fit to be set-aside. The petitioner in person has also submitted that
Sushma Devi had filed Exhibit-D which is an affidavit dated 05.11.2003
before the government authority i.e., the bank, informing the said authority
that she had not married after the death of her husband. The filing of such
certificate before the Bank itself indicates that no marriage whatsoever was
performed on 16.08.2003 in view of the admission on the part of Sushma
Devi herself, through the affidavit, Exhibit-D. The learned counsel appearing
in person has also submitted that Sushma Devi claimed to have informed the
bank authority at an earlier stage but her evidence on record is self-
contradictory and self-demolishing.
Arguments on behalf of private opposite parties by learned amicus:-
28. Learned amicus appearing on behalf of the private opposite parties in both
the cases has vehemently opposed the prayer made by the petitioner. He
submits that the present case is a criminal revision application and the scope
of interference in criminal revision is extremely limited. He submits that the
learned courts below has scrutinized the materials on record and has not
recorded any conclusive finding of the marriage, but has only recorded a
prima facie finding which is required to be done in a proceeding under
Section 125 of the Cr.P.C. which is a summary proceeding.
29. The learned amicus also submitted that one matrimonial title suit was filed
by the petitioner for a declaration that the marriage certificate was null and
void, in which Sushma Devi had also filed a written statement. However, the
said title suit was ultimately withdrawn and dismissed. The order of
withdrawal of the title matrimonial suit is not on record. He submits that
filing of title matrimonial suit has come on record during the evidence. The
learned amicus has further submitted that initially Sushma Devi had claimed
the date of marriage on 20.10.2003 which was the date of registration of
marriage, but subsequently she claimed that the marriage was solemnized on
16.08.2003 at Kalimandir, Toliganj, Kolkata. He submits that the said stand
which was introduced through amendment is not conflicting or contradictory
in view of the fact that the marriage registration certificate itself reflects that
the marriage was solemnized on 16.08.2003. He submits that Sushma Devi
was thoroughly cross-examined in this regard and the reason for amendment
and the circumstances under which the date of marriage was initially given
as 20.10.2003 have been fully explained by Sushma Devi in her evidence.
30. He has also submitted that so far as the plea of the petitioner that Sushma
Devi was at Ranchi on 16.08.2003 as well as on 20.10.2003 is concerned, the
presence of Sushma Devi at Ranchi on 16.08.2003 is not denied but the time
of the marriage at temple is at late night at Kolkata. This aspect of the matter
has also been explained by Sushma Devi during her evidence, where she was
thoroughly cross-examined and she has stated that she had gone to Kolkata
from Ranchi in Car along with the petitioner. So far as the attendance on
20.10.2003 is concerned, it has been submitted that the same is totally
disputed and denied. He also submits that the attendance register on
20.10.2003 was produced before the learned court below which was disputed
from the side of Sushma Devi. In the attendance register so produced
whitener was also used. He submits that this aspect of the matter has been
considered by the learned court below and therefore, the attendance register
dated 20.10.2003 has been disbelieved by the learned court below by citing
cogent reasons. The learned amicus has also submitted that the place of
marriage on 16.08.2003 as claimed by Sushma Devi was at Kalimandir
Toliganj, Kolkata, but no address of Kalimandir, Toliganj, Kolkata has been
given and as per the recording before the marriage registrar, the marriage
was solemnized on 16.08.2003 at 65/4 Graham Road, P.S. Toliganj, Kolkata.
He submits that although in the cross-examination Sushma Devi had
mentioned that she has never visited 65/4 Graham Road, Toliganj, Kolkata,
but the said address was the address of the friend of the petitioner. He
submits that merely because of this contradiction, the entire factum of
marriage and consequent issuance of marriage certificate cannot be
disbelieved. The learned amicus submits that it has also come in evidence of
Sushma Devi that the application for registration of marriage was duly
signed by both the parties though the same was denied by the petitioner, but
no attempt was made by the petitioner or by Sushma Devi to send the
signature appearing on the marriage certificate and the application for
marriage for examination by any handwriting expert. The learned amicus has
submitted that the petitioner had totally denied the registration of marriage,
but the official authority from Kolkata Marriage Registrar Office had come,
exhibited the documents in connection with registration of marriage, but the
person Shyamal Kumar Ghosh, Dastidar, who was concerned Marriage
Registrar for performance of the marriage had not deposed before the learned
court below to identify either the petitioner or Sushma Devi, but the marriage
was proved by referring to the official records. The learned amicus further
submits that Exhibit-1, which was undertaking given by the petitioner, is
dated 27.05.2004. This is an admitted document on record though it is the
case of the petitioner that the same was not only signed while he was in
custody in connection with the subsequent criminal case filed in the year
2006, but the same was also back dated. The learned amicus submits that the
petitioner being an advocate, had never taken any step-in connection with the
said document and the said document itself is prima-facie an admission of
marriage from the side of the petitioner.
31. The learned amicus has further submitted that there is also an independent
witness in connection with the fact that he had seen the petitioner and
Sushma Devi living as husband and wife while construction of house was
taking place. Learned Amicus submits that not only there are official records
in connection with registration of marriage, but there is also a witness who
had seen the petitioner and Sushma Devi living as husband and wife and also
deposed that a son was born out of wedlock. He submits that Sushma Devi
had also produced the discharge slip of the government hospital i.e., RIMS,
Ranchi regarding the date of birth of her son wherein the name of his father
is tallying with the name of the present petitioner. Learned amicus also
submits that further documents were produced before the learned court
below to show that Sushma Devi was the wife of the present petitioner i.e.
voter list and other documentary evidences. The learned amicus submits that
it is not a case of no evidence, so far as status of the petitioner and Sushma
Devi is concerned, rather there is enough cogent evidence on record on the
basis of which learned court below has arrived at a finding that marriage was
solemnized between the parties and a son was also born out of wed-lock. The
learned court below having scrutinized the material and weighed the
evidence and having come to a conclusion that there was a relationship of
husband and wife between the petitioner and Sushma Devi prima facie, there
is no perversity or any illegality in the impugned order calling for
interference by this court in revisional jurisdiction.
32. So far as the income of Sushma Devi is concerned, the learned amicus has
fairly submitted that in the application of Sushma Devi it had clearly been
mentioned that she has source of income, however, in her affidavit, which
was filed before the learned court below, she has clearly stated at para-16 of
her deposition dated 13.08.2009 that it is not a fact that after the death of her
first husband she was receiving full pension amount and she had explained
that after the marriage the petitioner had asked her not to inform the bank
immediately. She had also deposed that as soon as she gave the information
of her marriage, the bank official reduced the pension and the excess amount
right from the date of marriage was recovered.
33. It is further not in dispute from the side of Sushma Devi that she had certain
income from the government which as per Sushma Devi was on contractual
basis and not a permanent source of income. It is further not in dispute that
Sushma Devi had some income by way of pension on account of death of her
first husband. The learned amicus has also submitted that there was serious
dispute in connection with income of Sushma Devi, before the learned court
below and at no stage the petitioner or Sushma Devi had filed all the
necessary documents to substantiate their claim regarding their income or no
income or each other's income before the learned court below. The learned
amicus has also submitted that though the judgment was passed in the case
of Rajnesh vs. Neha prior to the pronouncement of the impugned order, but it
appears that none of the parties brought the said judgment to the notice of the
learned court below although the same was also applicable to pending
proceedings and consequently the order passed by the Hon'ble Supreme
Court in the case of Rajnesh vs. Neha has not been complied with. The
learned amicus has submitted that the quantum of pension is a meager
amount. The learned counsel has also submitted that it has come in evidence
earlier that the pension was of Rs. 2890/-, but after information, it was
reduced to Rs. 1275/- and from that amount also Rs. 500/- was recovered and
thus there was hardly any income from the pensionary benefits.
34. The learned amicus further submitted that the petitioner had claimed
before the learned court below that one Sweta Kumari is his legally
wedded wife and he had agreed to show proof regarding his marriage with
Sweta Kumari in the year 2001 and he had also deposed that he got
documentary proof to substantiate the same, but no further proof with
regard to his marriage with Sweta Kumari was given by the petitioner.
The learned amicus also submitted that the source of income of Sushma
Devi for her maintenance is required to be viewed differently as compared
to the source of income of the petitioner for maintenance of the child. He
submitted that it has been held in the case of Rajnesh Vs. Neha that it is
the joint responsibility of mother and father to maintain the child and even
if it is assumed that Sushma Devi had some source of income, the same
may not be a reason to set-aside the maintenance awarded to the son,
which is a meager amount of Rs.4,000/- per month. The son, being 16
years of age studying in Class-X presently, would certainly require much
more amount per month for his expenses. He also submitted that it is not
the case of the petitioner that the son also has any independent source of
income. The learned amicus submitted that P.W.-1 had seen the petitioner
and Sushma Devi living as husband and wife in the outhouse of his
daughter.
35. The learned amicus appearing for the Opposite Parties submitted that
since there has been no cross-examination in connection with Para- 1, 2, 3
and 4 of P.W.-1, the same has to be accepted. He further submitted that as
per the evidence of P.W.-1, Sushma Devi and the petitioner used to cook
food in the outhouse and used to reside at their house at Radhanagar as
husband and wife.
Rejoinder Arguments on the petitioner
36. In response, the petitioner in person submitted that though the
matrimonial title suit for declaration of the certificate of marriage as null
and void was filed, but the same was withdrawn in view of the fact that
the court at Ranchi did not have the necessary jurisdiction. However, he
submitted that the said order has not been brought on record before the
learned court below. He also submitted that no fresh application has been
filed so far before the jurisdictional court at Kolkata.
37. The petitioner in person also referred to the evidence of P.W.-1 Sheo
Kumar Singh wherein he deposed that he knows both the parties and they
are the neighbour of his daughter Aasha Singh and in the year 2003, the
petitioner has purchased a land just in front of the property of his daughter
Aasha Singh and in the year 2004, P.W.-1 was constructing the boundary
and outhouse on the property of his daughter and since then he knows the
petitioner and Sushma Devi as husband and wife. The petitioner submitted
that as per the case of Sushma Devi, she has remained in her matrimonial
house till July, 2005, so there was no occasion for her presence or stay in
the outhouse of the daughter of P.W.-1 in the year 2004 and it was never
case of Sushma Devi that she had ever resided in the outhouse of Aasha
Kumari, the daughter of P.W.-1. The petitioner further submitted that
though there is no much cross-examination in connection with the
aforesaid statements made in Para- 1, 2 , 3 and 4 of the examination-in-
chief of P.W.-1, but the evidence of P.W.-1 is contradictory to the
evidence and the case of Sushma Devi and therefore, none of the
evidences can be relied upon.
Argument of the State
38. Learned counsel appearing for the State has adopted the argument of the
opposite party.
Cr. Appeal (SJ) No. 492 of 2016
39. So far as the criminal appeal is concerned, the appellant appearing in
person referred to the judgment passed by the Hon'ble Supreme Court in
the case of Rajnesh vs. Neha (supra) to submit that it has been observed
by the Hon'ble Supreme Court that in case of any false statement is made
in the application, the same calls for a proceeding under Section 340 of
Cr.P.C. He submitted that Sushma Devi had made false statement before
the learned court below by stating that she has no source of income to
maintain herself and therefore, the learned court below ought to have
initiated the proceeding under Section 340 of Cr.P.C. for having filed a
false affidavit. The appellant further submitted that the birth certificate of
the son of Sushma Devi issued by the municipal corporation which was
produced by Sushma Devi was found to be forged and fabricated,
inasmuch as, the officer from Ranchi Municipal Corporation has deposed
that the number of the birth certificate which was claimed to be issued in
the name of the son of Sushma Devi was in fact issued in name of
someone else. The appellant submitted that he had also produced the
information received under Right to Information Act which indicated that
the birth certificate with the same number was issued in the name of
someone else and not in the name of the son of Sushma Devi.
40. The appellant in person further submitted that aforesaid two facts were
enough for initiation of a proceeding under Section 340 of Cr.P.C. against
Sushma Devi, but the learned court below has refused to initiate such
proceeding and therefore, the order refusing to initiate proceeding under
Section 340 of Cr.P.C. is fit to be set-aside.
41. Learned amicus appearing for Sushma Devi submitted that the date of
birth which was mentioned in the birth certificate issued by Municipal
Corporation exactly tallied with the date of birth which was mentioned in
the discharge slip of the government hospital i.e. RIMS where the child
was born. He submitted that there was no occasion for Sushma Devi to
forge any document to prove the date of birth of her son and no benefit
has been received by Sushma Devi by virtue of production of the alleged
forged birth certificate. He also submitted that though it has been deposed
before the learned court below that the actual birth certificate of same
number has been issued in favour of someone else, but such birth
certificate has not been produced and exhibited before the learned court
below. He submitted that the provision of Section 340 of Cr.P.C. requires
an intention to commit an offence for initiating a proceeding under
Section of 340 Cr.P.C. and it is the satisfaction of the court concerned as
to whether the court would like to initiate such a proceeding or not. He
also submitted that the only ground on the basis of which the said
proceeding was sought to be initiated was filing of forged birth certificate
and no such ground was taken with regard to making a statement that
Sushma Devi had no source of income. He submitted that the impugned
order refusing to initiate proceeding under Section 340 of Cr.P.C. clearly
reflects the ground on which the petition was filed. He also submits that
Sushma Devi in her evidence has clearly deposed that she had some
source of income and on the other hand the appellant/petitioner has not
stated in his evidence that he has no source of income. The learned amicus
submitted that neither there was any intention of Sushma Devi, nor she
has gained any benefit out of the alleged forged birth certificate, nor any
birth certificate with the same number issued in favour of any person has
been exhibited before the learned court below and therefore, the mere
statement is not sufficient to say that the birth certificate was issued in the
name of another person with the same number. He also submitted that the
law is well-settled that if the document is available, the same is required to
be produced and proved. A document cannot be proved by oral evidence
or by information issued under Right to Information and therefore, it
could not be concluded that the alleged birth certificate was forged that
too in a summary proceeding.
42. The appellant in person admitted that except the information received
through RTI, no further register or the document or the birth certificate
issued in favour of any third party has been produced and exhibited before
the learned court below.
Argument of the State
43. Learned counsel appearing on behalf of the State adopted the arguments
advanced on behalf of the learned amicus appearing on behalf of the
private opposite parties.
Findings of this court
A. Cr. Appeal (S.J.) No. 492 of 2016
44. After hearing the parties and the going through the impugned order dated
06.04.2016, this Court finds that the appellant had filed a petition dated
19.03.2016 in Original Maintenance Case No.142/2007 before the learned
court below for initiating a proceeding under Section 340 of Cr.P.C.
against Sushma Devi-Applicant No.1 (Respondent No.2 herein) only on
the ground that the Birth Certificate of the son of the Applicant No.1
namely, Prateek Kumar procured from the Ranchi Municipal Corporation,
which has been marked as Exhibit-5/5 at the instance of the Applicant
No.1, is a forged and fabricated document.
45. This Court finds that except the information received through Right to
Information Act, no register, no document and no birth certificate issued
in favour of any third party has been produced and exhibited before the
learned court below. This Court further finds that no ground was taken by
the appellant before the learned court below in connection with alleged
incorrect statement that the Respondent No.2 has no source of income.
46. This Court is of the considered view that mere statement of the appellant
that the alleged document is a forged document is not sufficient for the
purpose of Section 340 of Cr.P.C. This court also finds that Sushma Devi
had enough material including her discharge slip from the hospital after
birth of her son to prove the date of birth and parentage of the petitioner.
This Court finds that the appellant has failed to make out any case against
Sushma Devi for initiating a proceeding against her under Section 340 of
Cr.P.C. This court also finds that the learned court below has passed a
well-reasoned order refusing to initiate a proceeding under section 340 of
Cr.P.C. Accordingly, this Court finds no merit in the present criminal
appeal which is hereby dismissed.
B. Cr. Revision No. 20 of 2021
47. The foundational facts and the case of the respective parties before the
learned court below have already been mentioned in the aforesaid
paragraphs. The specific case of the petitioner appearing in person is that
Sushma Devi seeking maintenance under Section 125 Cr.P.C. for herself
and her son was required to prove following ingredients: -
(a) She was legally wedded wife and her son was the son of the
petitioner.
(b) She was unable to maintain herself and her son.
(c) The person from whom she was claiming maintenance was having
sufficient means.
48. It is the argument of the petitioner appearing in person that the onus of
proving all the aforesaid facts was upon the claimant-Shushma Devi. It is
not in dispute that her son is a minor dependant. The specific case of the
petitioner is that none of the three ingredients have been proved and
therefore, the impugned order granting maintenance in favour of Shushma
Devi and her son is ex-facie perverse and is fit to be set-aside.
49. There is no dispute that the above ingredients were required to be proved
by Sushma Devi. It is not in dispute that the present case arise out of
proceedings under section 125 of Cr.P.C. It is to be examined as to
whether the aforesaid ingredients were proved or not as per the
requirement of the provision of section 125 of Cr.P.C. and as to whether
the learned court below has rightly passed the impugned order granting
maintenance.
(b) Ingredient no.(a)
Whether Sushma Devi was legally wedded wife and her son was
the son of the petitioner.
50. The petitioner has referred to judgment passed by the Hon'ble Supreme
Court reported in (2005) 3 SCC 636 (Savitaben Somabhai Bhatiya versus
State of Gujarat and Others) to submit that there is no scope to include a
woman not lawfully married within the expression of 'wife' and further
relied upon the judgment passed by the Hon'ble Supreme Court reported
in (2019) 13 SCC 796 (Lalita Toppo versus State of Jharkhand and
another) to submit that where there is no marriage, maintenance cannot
be claimed under Section 125 of Cr.P.C. and also the judgment reported
in (1988) 1 SCC 530 (Yamunabhai Anantrao Adhav versus Anantrao
Shivram Adhav and another) to submit that 'wife' in Section 125 Cr.P.C.
means only a legally wedded wife.
51. The petitioner has also referred to a number of judgments as mentioned in
Para-21 above to bring home the nature of evidence which is required to
be adduced to prove marriage.
52. The petitioner in person has referred to the various evidences adduced by
the parties, both oral and documentary, to point out the contradictions
with regard to their claim and evidence of Sushma Devi and has also
pointed out that she has taken shifting stand, in as much as, the date of
marriage as mentioned in the original petition was itself amended by
virtue of an amendment, though the amendment was allowed by the
learned court below. The petitioner in person has also advanced his
arguments with regard to impossibility of the alleged marriage having
been solemnized at Kolkata by referring to the attendance of Sushma Devi
in the office at Ranchi on the same day. The petitioner in person has also
submitted that he is already married and therefore question and validity of
second marriage does not arise and consequently there is no question of
payment of maintenance to Sushma Devi and her son.
53. The judgments passed by the Hon'ble Supreme Court reported in (1988) 1
SCC; (2005) 3 SCC 636 and (2019) 13 SCC 796 clearly lay down that the
entitlement for maintenance under Section 125 Cr. P.C. is available to a
legally wedded wife. However, in the judgment passed by the Hon'ble
Supreme Court reported in (2021) 2 SCC 324 (Rajnesh vs. Neha &
Another) decided on 4th November, 2022, it has been held in paragraph 33
that the remedy provided under Section 125 Cr. P.C. is summary in nature
and the substantive disputes with respect to the dissolution of marriage
can be determined by a civil court/family court in an appropriate
proceeding such as Hindu Marriage Act. The nature of enquiry in
connection with a proceeding under Section 125 Cr. P.C. has been
mentioned in para 32 of the aforesaid judgment. Para-32 and 33 of the
aforesaid judgment are quoted as under: -
"32. Chapter IX of the Code of Criminal Procedure, 1973 provides for
maintenance of wife, children and parents in a summary proceeding.
Maintenance under Section 125 CrPC may be claimed by a person
irrespective of the religious community to which they belong. The
purpose and object of Section 125 CrPC is to provide immediate relief
to an applicant. An application under Section 125 CrPC is predicated
on two conditions: (i) the husband has sufficient means; and (ii)
"neglects" to maintain his wife, who is unable to maintain herself. In
such a case, the husband may be directed by the Magistrate to pay
such monthly sum to the wife, as deemed fit. Maintenance is awarded
on the basis of the financial capacity of the husband and other
relevant factors.
33. The remedy provided by Section 125 is summary in nature, and the
substantive disputes with respect to dissolution of marriage can be
determined by a civil court/Family Court in an appropriate
proceeding, such as the Hindu Marriage Act, 1955.
54. In the aforesaid judgement, the Hon'ble Supreme Court in paragraph 37 to
40 has dealt with various judicial pronouncements in connection with the
nature of enquiry in relation to marriage while deciding the claim under
Section 125 Cr. P.C. which are quoted as under: -
"37. In Chaturbhuj v. Sita Bai this Court held that the object of
maintenance proceedings is not to punish a person for his past
neglect, but to prevent vagrancy and destitution of a deserted wife
by providing her food, clothing and shelter by a speedy remedy.
Section 125 CrPC is a measure of social justice especially enacted
to protect women and children, and falls within the constitutional
sweep of Article 15(3), reinforced by Article 39 of the Constitution.
38. Proceedings under Section 125 CrPC are summary in nature. In
Bhuwan Mohan Singh v. Meena this Court held that Section 125
CrPC was conceived to ameliorate the agony, anguish, financial
suffering of a woman who had left her matrimonial home, so that
some suitable arrangements could be made to enable her to sustain
herself and the children. Since it is the sacrosanct duty of the
husband to provide financial support to the wife and minor
children, the husband was required to earn money even by physical
labour, if he is able-bodied, and could not avoid his obligation,
except on any legally permissible ground mentioned in the statute.
39. The issue whether presumption of marriage arises when
parties are in a live-in relationship for a long period of time, which
would give rise to a claim under Section 125 CrPC came up for
consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha
before the Supreme Court. It was held that where a man and a
woman have cohabited for a long period of time, in the absence of
legal necessities of a valid marriage, such a woman would be
entitled to maintenance. A man should not be allowed to benefit
from legal loopholes, by enjoying the advantages of a de facto
marriage, without undertaking the duties and obligations of such
marriage. A broad and expansive interpretation must be given to
the term "wife", to include even those cases where a man and
woman have been living together as husband and wife for a
reasonably long period of time. Strict proof of marriage should not
be a precondition for grant of maintenance under Section 125
CrPC. The Court relied on the Malimath Committee Report on
Reforms of Criminal Justice System published in 2003, which
recommended that evidence regarding a man and woman living
together for a reasonably long period, should be sufficient to draw
the presumption of marriage.
40. The law presumes in favour of marriage, and against
concubinage, when a man and woman cohabit continuously for a
number of years. Unlike matrimonial proceedings where strict
proof of marriage is essential, in proceedings under Section 125
CrPC such strict standard of proof is not necessary."
55. The law is well established that proceeding under Section 125 Cr. P.C. are
summary in nature and it has also been held that strict standard of proof of
marriage is not necessary under Section 125 Cr. P.C.
56. The learned court below recorded that the maintenance proceeding under
Section 125 Cr. PC is summary trial and the strict proof of marriage
should not be a pre-condition for grant of maintenance under Section 125
of Cr. PC. The learned court below has scrutinised the evidences on
record and recorded that in the present case there is strong case of Sushma
Devi that her marriage was registered with the petitioner and she has
corroborated with documentary evidence by Ext.2 and 2/A, 3 and Ext.6
series which have been proved by PW-3 himself as official witness.
Further from the evidence of PW-1 it has come clearly that Sushma Devi
and the petitioner lived together as husband wife and from this wedlock
they have been blessed with a son, applicant no.2. Sushma Devi herself
(P.W.-2) has stated that after marriage she started living with the
petitioner as husband and wife at matrimonial home and she was
subjected to cruelty and thrown out from the matrimonial home after the
assault by the petitioner for demand of dowry for which she filed criminal
case, which shows clearly that Shusma Devi lived with the petitioner after
marriage and cohabited and from this wedlock applicant no.2, a son was
born. It has also been recorded by the learned court below that at the time
of marriage Shusma Devi was widow, so there was no impediment for
Sushma devi to marry with the petitioner.
57. This Court finds that Sushma Devi has adduced sufficient evidence before
the learned court below, which has been discussed in the impugned order
regarding her marriage in Kali Mandir at Kolkata and its subsequent
registration at Kolkata and has also led oral evidence that the petitioner
and Sushma Devi had cohabited and further evidence that a son was born
out of wedlock and in support of which, discharge slip of the hospital was
also exhibited by Sushma Devi before the learned court below showing
the name of the petitioner as the father of her minor son. Further, there is
enough material before the learned court below regarding birth of a son
out of wedlock. The conduct of the petitioner who, at one point of time,
as recorded in the proceedings before the learned court below and also in
the impugned order, readily agreed for DNA Test to ascertain the
paternity of the child, but subsequently did not turnup to undergo the test
without citing any reason at all and even before this Court, the petitioner
in person has not cited any reason for not having undergone the DNA
Test, though admittedly he had agreed for said test before the learned
court below. Rather, the petitioner in person has argued before this Court
that the petitioner had no access to Sushma Devi for the period during
which she could have conceived and given birth to a child. This aspect of
the matter has been elaborately dealt with in the impugned order. The
learned court blow has considered the aforesaid aspect whereby the
petitioner initially agreed for paternity test through DNA test and after
order was passed, he did not turn up and refused to undergo the test and
the learned court below has drawn adverse inference against the petitioner
on account of such conduct. The learned court below has also recorded
that the petitioner has not led any evidence to deny having access to
Sushma Devi. The learned court below has also considered the other
evidences including the discharge slip of Shusma Devi from the hospital
after giving birth to her son which also reflected that the petitioner was
named as the father of the child. This court has gone through the aforesaid
findings of the learned court below which are based on appreciation of
materials on record and also the conduct of the petitioner in denying to
undergo the DNA test after the order for the same was passed with the
consent of the petitioner. This court is also of the considered view that in a
summary proceeding under section 125 Cr.P.C. where a purported father
denies paternity, but refuses to undergo DNA test, such father is
disentitled to deny paternity. The petitioner has heavily relied upon the
judgment passed by the Hon'ble Madhya Pradesh High Court reported in
2011 SCC Online M.P. 192 (Lallu Lal Patel versus Anar Kali @ Tannu
Bai Yadav and another) to submit that the conclusiveness of presumption
under Section 112 of the Evidence Act cannot be rebutted by DNA Test
and the proof of non-access between the parties during the relevant period
is the only way to rebut such presumption and DNA Test is not to be
directed as a matter of routine and it is to be directed in deserving the
cases. This court finds that the said case was filed under Section 482 Cr.
P.C. to challenge the order for DNA Test of the husband in a proceeding
under Section 125 of Cr. P.C. On the one hand, in the present case,
Sushma Devi has led sufficient evidence to prove that the petitioner had
access to Sushma Devi and on the other hand, the petitioner has not been
able to prove that he had no access to Sushma Devi. In the present case,
the learned court below never compelled the petitioner to undergo DNA
Test, rather the petitioner readily accepted to undergo DNA Test, but
subsequently backed out from such test citing no reasons whatsoever.
Accordingly, the aforesaid judgment relied upon by the petitioner also
does not help the petitioner. In this context , it would be useful to refer to
the judgement passed by the Hon'ble Supreme Court in the case of Ashok
Kumar -Versus- Raj Gupta and Others reported in (2022) 1 SCC 20
wherein it has been held that at Para-18 that in case of refusal to undergo
DNA Testing , an adverse inference can be drawn .
58. While considering the status of the applicant- Sushma Devi vis-à-vis the
petitioner, this Court finds that the judgment relied upon by the petitioner
reported in 1974 SCC Online Cal. 138 (supra) as mentioned in para-21
above is a case arising out of a criminal complaint, where charges were
framed under Sections 495/109 of the Indian Penal Code against the
petitioner of the said case. The Hon'ble Calcutta High Court held that in
order to make out a case under Section 495 of the Penal Code, the
complainant was required to prove satisfactorily that the alleged marriage
took place between the parties according to Hindu Rites prior to the
registration and that the certificate by itself does not prove marriage and in
the facts of the said case, it was held that there was no evidence to prove
the marriage to have taken place prior to registration under the certificate.
The said judgment has no applicability in the facts and circumstances of
this case as the nature of proof of marriage in case of allegation of bigamy
under the Penal Code is much more strict as compared to the nature of
proof in a proceeding under Section 125 Cr.P.C.
59. So far as the judgment reported in 1988 SCC Online Cal 24 (supra) is
concerned, the same was arising out of a regular suit which was filed for
decree for dissolution of marriage on the ground of cruelty. In the said
case, the marriage itself was declared to be void after appreciating the
evidences on record. The scope of enquiry in the present case is not as to
whether the marriage has been conclusively proved, but as to whether the
marriage has been proved prima-facie for the purposes of Section 125 Cr.
P.C., which is a summary proceeding. The reliance by the petitioner on
the aforesaid judgment is misplaced. It is also important to note that in the
present case, it has come on record that the petitioner had filed a suit for
declaration of alleged marriage between the petitioner and Sushma Devi
as null and void before the civil court at Ranchi and in the said case
Sushma Devi has appeared upon notice , but the petitioner had withdrawn
the said suit . The order of withdrawal has not been brought on record.
However, the party-in-person has tried to justify the withdrawal of the suit
by submitting that the suit was withdrawn on account of want of territorial
jurisdiction as the alleged marriage was performed at Kolkata. During the
course of argument, he has also stated that no fresh suit at Kolkata has
been filed so far. This Court is of the considered view that the claim of the
petitioner that there was no marriage between the petitioner and Sushma
Devi in the eyes of law is required to be declared by a competent court. In
a proceeding under Section 125 Cr.P.C. only prima-facie proof of
marriage was required to be seen which has been seen by the learned court
below who upon appreciating of materials has recorded a finding that
Sushma Devi was legally wedded wife of the petitioner.
60. So far as the judgment reported in 1992 SCC Online M.P. 161 is
concerned, the same also does not apply to the facts and circumstances of
this case as it was arising out of dismissal of suit for declaration that no
marriage had taken place between the parties and that the marriage at
Kolkata and 24 Pargana was null and void. It is important to note that in
the said case after appreciating the materials on record, it was held that the
Marriage Registration Certificate was not effective. In the said case,
territorial jurisdiction of court at Indore was also under consideration as
the marriage was said to have taken place in the court of Marriage Officer
at Kolkata and 24 Pargana and it was ultimately held that the civil court at
Indore had the jurisdiction to try the suit considering the relief prayed for
in the suit.
61. So far as the claim of the petitioner that he was already married much
prior to the alleged date of marriage with Sushma Devi, this court finds
that the petitioner did not lead any cogent evidence with regard to his
marriage with another lady except a statement to that effect. He had also
stated that he could prove his previous marriage by documentary evidence
but no such evidence was produced. This court is of the considered view
that on the face of the materials on record the petitioner has not been able
to prove that the petitioner was already a married person prior to the
alleged marriage with the petitioner.
62. The petitioner in person has also relied upon attendance register to state
that on the day Sushma Devi has claimed to have married the petitioner in
temple at Kolkata and also on the day she claims that her marriage was
registered at Kolkata, she was in Ranchi. On the date of marriage in the
temple at Kolkata, Sushma Devi in her evidence has explained that
marriage at Kolkata was solemnized in late evening and she could reach
Kolkata from Ranchi. So far as her attendance in Ranchi on the date of
registration of marriage is concerned, she has denied the same and
admittedly in the attendance register whitener was used. The required
documents regarding registration of marriage were proved by the official
witness who had arrived from Kolkata.
63. This court is of the considered view that the arguments of the amicus
appearing on behalf of Sushma Devi and her son before this court are
sound arguments based on material evidences on record and meets every
argument advanced by the petitioner in person.
64. This court finds that there was enough evidence before the learned court
below to come to a prima-facie finding regarding proof of marriage
between the petitioner and Sushma Devi and that the son of Sushma Devi
was born out of wed lock between the petitioner and Sushma Devi. This
court has gone carefully through the impugned order and finds that the
same is based on appreciation of evidences brought on record. The learned
court below has considered all the materials on record and also the
arguments of the parties and has passed a well-reasoned order on the point
of relationship amongst the petitioner and the two claimants. The
arguments of the petitioner have been rejected by the learned court below
by citing reasons. This court does not find any illegality or perversity in
the impugned order so far as it relates to prima-facie recording of finding
of marriage and birth of child out of wed lock between the petitioner and
Sushma Devi. Thus, Sushma Devi has been able to prove by cogent
evidence for the purposes of proceedings under section 125 Cr.P.C. that
she was legally wedded wife of the petitioner and her son was the son of
the petitioner.
Ingredients no (b) and (c )
(b) Whether Sushma Devi was unable to maintain herself and her son.
(c) Whether the petitioner, was having sufficient means.
65. This court finds that initially, Sushma Devi claimed that she had no means
to maintain herself and her son. However, it has come on record that she
had some source of money from family pension, as she was the wife of an
Army personnel who had already expired. The quantum of family pension
has also come on record and finding has been recorded by the learned
court below that Sushma Devi was getting pension of Rs. 2890/- per
month which got reduced to Rs. 1275/- upon her re-marriage. It has also
come on record that Sushma Devi had some income through contractual
employment with the government, though admittedly, such engagement
cannot be said to be a permanent employment with the government.
However, the quantum of income out of such contractual work has also
not been brought on record. It was asserted by the petitioner that Sushma
Devi had her own house, but no such evidence has been brought on
record. It was asserted by the petitioner that Sushma Devi got substantial
amount upon death of her first husband, but those details have also not
come on record. The exact income, assets and sources of income of
Sushma Devi was certainly within her exclusive knowledge and the
petitioner had pointed out some of them, but the actual income and assets
of Sushma Devi could not be brought on record. Certainly, it has come on
record that Sushma Devi had some sources of income including family
pension.
66. So far as the petitioner is concerned, he also did not disclose his exact
income and his sources of income. Smt. Sushma Devi claimed that the
petitioner had multiple sources of income such as rental income and
income from ancestral property apart from his professional income as an
advocate and that the petitioner was also an additional public prosecutor
(APP). This court also finds that the petitioner had also not disclosed his
income and did not disclose his all sources of income and assets and such
disclosure was certainly essential to arrive at a finding regarding income
of the petitioner and also to ascertain the standard of life which the
petitioner and Sushma Devi could have lived, if they lived together.
67. The impugned judgment is dated 15th December, 2020. By this time the
judgment was already passed by the Hon'ble Supreme Court in the case
reported in (2021) 2 SCC 324 (Rajnesh versus Neha) decided on
04.11.2020. As per this judgement, interalia, the parties to claim of
maintenance and other matrimonial disputes were to disclose all their
sources of income and assets on affidavit to enable the court to ascertain
the required maintenance/ alimony. Such affidavit was directed to be filed
in all the pending cases of matrimonial disputes also. The final directions
of the Hon'ble Supreme Court is contained in paragraph 127 to 134 of the
aforesaid judgment which is quoted as under: -
"Final Directions
127. In view of the foregoing discussion as contained in Part B --
I to V of this judgment, we deem it appropriate to pass the following
directions in exercise of our powers under Article 142 of the
Constitution of India.
(a) Issue of overlapping jurisdiction
128. To overcome the issue of overlapping jurisdiction, and avoid
conflicting orders being passed in different proceedings, it has
become necessary to issue directions in this regard, so that there is
uniformity in the practice followed by the Family Courts/District
Courts/Magistrate Courts throughout the country. We direct that:
128.1. (i) Where successive claims for maintenance are made by
a party under different statutes, the court would consider an
adjustment or set-off, of the amount awarded in the previous
proceeding(s), while determining whether any further amount is to
be awarded in the subsequent proceeding.
128.2. (ii) It is made mandatory for the applicant to disclose the
previous proceeding and the orders passed therein, in the subsequent
proceeding.
128.3. (iii) If the order passed in the previous proceeding(s)
requires any modification or variation, it would be required to be
done in the same proceeding.
(b) Payment of Interim Maintenance
129. The Affidavit of Disclosure of Assets and Liabilities annexed
as Enclosures I, II and III of this judgment, as may be applicable,
shall be filed by both parties in all maintenance proceedings,
including pending proceedings before the Family Court/District
Court/Magistrates Court concerned, as the case may be, throughout
the country.
(c) Criteria for determining the quantum of maintenance
130. For determining the quantum of maintenance payable to an
applicant, the court shall take into account the criteria enumerated
in Part B -- III of the judgment. The aforesaid factors are however
not exhaustive, and the court concerned may exercise its discretion
to consider any other factor(s) which may be necessary or of
relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
131. We make it clear that maintenance in all cases will be
awarded from the date of filing the application for maintenance, as
held in Part B -- IV above.
(e) Enforcement/Execution of orders of maintenance
132. For enforcement/execution of orders of maintenance, it is
directed that an order or decree of maintenance may be enforced
under Section 28-A of the Hindu Marriage Act, 1955; Section 20(6)
of the DV Act; and Section 128 of CrPC, as may be applicable. The
order of maintenance may be enforced as a money decree of a civil
court as per the provisions of the CPC, more particularly Sections
51, 55, 58, 60 read with Order 21.
133. Before we part with this judgment, we note our appreciation
of the valuable assistance provided by the learned Amici Curiae Ms
Anitha Shenoy and Mr Gopal Sankaranarayanan, Senior Advocates
in this case.
134. A copy of this judgment be communicated by the Secretary
General of this Court, to the Registrars of all High Courts, who
would in turn circulate it to all the District Courts in the States. It
shall be displayed on the website of all District Courts/Family
Courts/Courts of Judicial Magistrates for awareness and
implementation."
68. By virtue of direction contained in paragraph 129 of the aforesaid
judgment, it has been clearly directed that affidavit of disclosure of assets
and liabilities annexed as enclosure-I, II and III of the judgment was made
applicable and was required to be filed by both the parties in all
maintenance proceedings including pending proceedings before the
Family Court/District Court/Magistrate Court concerned, as the case may
be, throughout the country. Such direction was passed by the Hon'ble
Supreme Court under Article 142 of the Constitution of India and under
no circumstances, such direction could have been ignored by the learned
court below. It appears that the judgment passed by the Hon'ble Supreme
Court in the case of Rajnesh versus Neha was not brought to the notice of
the learned court below and such gap could have been on account of the
fact that the judgment was passed by the Hon'ble Supreme Court on
04.11.2020 and the impugned judgment has been passed on 15th
December, 2020 and by that time, the judgment of the Hon'ble Supreme
Court might not have been communicated to the learned court below.
Admittedly, none of the parties have drawn the attention of the learned
court below to the aforesaid judgment and directions of the Hon'ble
supreme court.
69. The aforesaid facts and circumstances indicate that there is cloud over the
sources of income / assets / liabilities of the petitioner and sources of
income / assets / liabilities of Sushma Devi. In such circumstances, the
truth regarding their sources of income / assets / liabilities is required to
be ascertained to determine the quantum of maintenance. The method by
which the court could arrive to the truth of income / assets / liabilities of
the parties , has already been laid down by the Hon'ble Supreme Court in
the aforesaid judgment of Rajnesh versus Neha which was passed prior to
passing of impugned order. The direction as contained in Rajnesh versus
Neha having not been undertaken/complied by the learned court below,
the impugned order cannot be sustained in the eyes of law to the extent it
relates to determination of quantum of maintenance.
70. With regard to maintenance of minor children, it has been held in
paragraph 91 to 93 of the aforesaid judgment passed in the case of
Rajnesh versus Neha. It has been held in para 91 to 93 as follows: -
"(d) Maintenance of minor children
91. The living expenses of the child would include expenses for
food, clothing, residence, medical expenses, education of children.
Extra coaching classes or any other vocational training courses to
complement the basic education must be factored in, while awarding
child support. Albeit, it should be a reasonable amount to be
awarded for extracurricular/coaching classes, and not an overly
extravagant amount which may be claimed.
92. Education expenses of the children must be normally borne
by the father. If the wife is working and earning sufficiently, the
expenses may be shared proportionately between the parties.
(e) Serious disability or ill health
93. Serious disability or ill health of a spouse, child/children
from the marriage/dependent relative who require constant care and
recurrent expenditure, would also be a relevant consideration while
quantifying maintenance."
71. It has been held by the Hon'ble Supreme Court that if the wife is working
and earning sufficiently, the expenses may be shared proportionately
between the parties. Thus, by no stretch of imagination, the responsibility
of the petitioner to maintain his son jointly with Sushma Devi can be
negated. However, the quantum of contribution from the side of the
petitioner would certainly depend upon the final adjudication by the
learned court below on the quantum of maintenance for the son and its
proportion to be paid by the petitioner. In the fight between the petitioner
and Sushma Devi, the education and progress in life of applicant No. 2-
should not suffer. In such circumstances, this court is of the considered
view that the fresh decision on quantum of maintenance to Sushma Devi
and her son should be decided at the earliest.
72. In such circumstances, the impugned order to the extent it fixes the
quantum of maintenance for Sushma Devi and her son is set aside and the
matter is remitted back to the learned court below only for the purposes of
undertaking the necessary exercise in terms of the judgment passed by the
Hon'ble Supreme Court in the case of Rajnesh versus Neha for the
purposes of determining the quantum of maintenance. The parties are
directed to appear before the learned court below on 13.01.2023 along
with the affidavit in terms of the judgment passed by the Hon'ble
Supreme Court in the case of Rajnesh versus Neha. The learned court
below is directed to proceed in accordance with law in terms of the
judgment passed by the Hon'ble Supreme Court in the case of Rajnesh
versus Neha. Considering the fact that much time has elapsed, the learned
court below shall make all endeavour to pass a final decision on the point
of quantum of maintenance within a period of three months from the date
of appearance of the parties.
73. In view of the aforesaid findings, the impugned order is sustained only to
the extent it holds that for the purposes of proceedings before the learned
court below under section 125 Cr.P.C. Sushma Devi is the legally wedded
wife of the petitioner and applicant no.2 is the son of Sushma Devi and
the petitioner, but the matter is remanded to the learned court below only
for determination on the point of quantum of maintenance for Sushma
Devi and her son in terms of the aforesaid observations and directions.
74. Criminal revision petition is disposed of in the above terms.
Appreciation of learned Amicus Curiae
75. This Court appreciates the efforts of Mr. Yogesh Modi the learned
Amicus who has meticulously prepared and ably assisted the Court while
arguing this criminal revision and also criminal appeal on behalf of the
private opposite party(s).
76. The Secretary, Jharkhand High Court Legal Services Committee shall
reimburse the learned Amicus on submission of bill(s). He shall be paid
Rs.5500/- for each effective date of hearing, but subject to the cap as
provided under the Notification dated 23.11.2017.
(Anubha Rawat Choudhary, J.)
Binit/Mukul
