Dinesh Kumar Mahto @ Dinesh Kumar ... vs The State Of Jharkhand
2023 Latest Caselaw 2616 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
             Criminal Revision No.440 of 2022

Dinesh Kumar Mahto @ Dinesh Kumar Mahato ..... ... Petitioner
                           Versus
1. The State of Jharkhand
2. Rina Kumari @ Rina Devi @ Reena           .... .... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner : Mr. Sunil Kumar Mahato, Advocate For the State : Mr. Shailesh Kumar Sinha, A.P.P. For the O.P. No.2 : Mr. Dhramendra Kumar Maltiyar, Advocate

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C.A.V. on 25.07.2023 Pronounced on 04.08.2023

1. This criminal revision has been preferred on behalf of the

petitioner against the judgment dated 15th February, 2022

passed by the learned Principal Judge, Family Court, Dhanbad

in Original Maintenance Case No.454 of 2019, whereby and

whereunder the application filed by the Opposite Party No.2 -

Rina Kumari under Section 125 Cr.P.C. was allowed and the

petitioner was directed to pay 10,000/- per month as

maintenance on 10th day of each succeeding month. It was

further ordered that the maintenance amount would be payable

from the date of application i.e., from 3rd August, 2019.

2. The brief facts leading to this criminal revision are that

maintenance application was moved on behalf of the Rina

Kumari @ Rina Devi @ Reena Mahato (the Opposite Party No.2

in this case) under Section 125 Cr.P.C. against her husband -

Dinesh Kumar Mahato (the petitioner in this case) on the

averments that she is a legally wedded wife of Dinesh Kumar

Mahato resident of Jhabri, P.O., Jhabri, P.S. Silli, District-Ranchi.

After her marriage she went to her in-law's house and lived

there peacefully for a week only. After that her husband and

her in-laws began to torture her and finally on 28th August,

2015, she was ousted from the matrimonial house and, since,

then she had been residing at her parental house having no

source of income. It is further averred that she is unable to

maintain herself, to the contrary her husband is a government

employee and earns Rs.50,000/- per month from salary,

Rs.25,000/- per month from agriculture and Rs.20,000/- per

month from other sources. Therefore, prayed for the amount of

Rs.25,000/- per month as maintenance.

On behalf of the respondent - husband the written

statement was filed on 28th January, 2020, wherein he admitted

the date of marriage and averred that the maintenance

application is not maintainable in the eyes of law reason being

on 22nd August, 2015, it was petitioner (the O.P. No.2 in this

case) herself, who left the matrimonial house without rhyme

and reason. In spite of several requests made by the

respondent - husband, she did not come back to the

matrimonial house, rather she misbehaved with him. It is also

further averred that he was ready and willing to settle the

dispute but the petitioner had denied the same once for all.

Lastly, it is also averred that he is still ready and willing to keep

her with full dignity.

3. On behalf of the petitioner (Opposite Party No.2 in this case) in

oral evidence examined P.W.-1 Rina Mahato, P.W.2 Sukhen Roy

and P.W.-3 Dilip Kumar Mahato and in documentary evidence

adduced the certified copy of plaint of C.P. Case No.3270 of

2018 as Ext.1, photocopy of letter no.106 dated 4th February,

2020 of Electricity Executive Engineer as Ext.2 and pay slip

Ext.3 and for identification, Adhar Card and Pan Card of Balram

Singh as Ext. X & X/1 and certified copy of plaint of C.P. Case

No.1988 of 2020 as Ext.B for identification.

4. On behalf of the respondent (the petitioner in this case) in oral

evidence examined R.W.-1 Dinesh Kumar Mahato.

5. The learned Family Court after hearing the learned counsel for

the parties allowed the application under Section 125 Cr.P.C.

and the respondent (the petitioner herein) was directed to pay

the amount of Rs.10,000/- per month to the Opposite Party

No.2 which was to be paid on 10th day of each succeeding

month. It was also directed that the said amount was to be

paid from the filing of the maintenance application i.e., 3rd

August, 2019.

6. Aggrieved from the impugned order dated 15th February, 2022,

this criminal revision is preferred on behalf of the petitioner -

husband on the grounds that the impugned judgment passed

by the learned Family Court is bad in the eyes of law. The

learned Family Court did not consider the actual income of the

petitioner/husband and without taking into account the liability

of the petitioner has passed the impugned order. The Opposite

Party No.2 (the wife of the petitioner) is graduate and she has

been earning Rs.20,000/- per month from the private tuition.

The O.P. No.2 does not want to live with the petitioner and with

his mother while the petitioner is ready to keep her with full

dignity and honour. The petitioner has also filed a case under

Section 9 of the Hindu Marriage Act in the court of Additional

Principal Judge-II, Additional Family Court, Ranchi which was

decided in favour of the petitioner. The petitioner is a lineman

in the Electricity Department and he had got this appointment

on compassionate ground. He is having liability to maintain his

married brother and married sister. On account of major road

accident which the petitioner had met, he is suffering leg injury

and has been incurring expenses of the same in treatment. He

had also purchased a car on loan for his smooth movement and

the installments of the same are being paid by him. On account

of being in judicial custody in a case under Section 498-A I.P.C.,

he was suspended from service. Lastly, it is submitted that the

petitioner is ready to pay his wife Rs.5,000/- per month but not

from the date of filing of the maintenance application because

he had been remained suspended from his service during that

period. On the basis of the aforesaid submissions, the learned

counsel for the petitioner prayed to allow this criminal revision

and to set aside the impugned judgment passed by the learned

Family Court, Dhanbad.

7. I have heard the rival submissions of the learned counsel for

the parties and perused the materials available on record.

8. For disposal of this criminal revision, following points for

determination are being framed :

i. Whether the wife (the Opposite Party No.2) refused

to live with her husband without any sufficient

reason, if yes, its effect ?

ii. What amount of maintenance is the wife entitled

from her husband ?

9. For determination of the above points, this Court is averted to

the evidence adduced oral and documentary on behalf of the

parties before the learned Family Court.

10. P.W.-1 Rina Mahato in her examination-in-chief says that

her marriage was solemnized on 1st May, 2014 according to

Hindu rites and rituals with the petitioner. She lived in her in-

law's house properly for one week, thereafter, her husband and

family members began to torture her and did maar-peet with

her. On 28th August, 2015, she was ousted from the

matrimonial house and, since then, she had been residing in

her parental house. She is unable to maintain herself and is

doing no work. The petitioner/husband is Junior Engineer in

Jharkhand Electricity Board Sirdo, Ranchi and is getting

Rs.62,000/- per month as salary and he has income of Rs.3-4

lacs from agriculture. He has also business of poultry farm and

goat farming and from that he is earning Rs.55,000/- per

month. His mother also gets the pension and his both sisters

got married. The wife/O.P. No.2 has also filed a criminal case

for subjecting her to cruelty and claimed the amount of

Rs.25,000/- per month. This witness was not cross-examined,

hence, he was discharged from cross-examination.

11. P.W.-2 Sukhen Roy in his examination-in-chief says that

he is familiar with Rina Devi and her marriage was solemnized

on 1st May, 2014. Thereafter, she went to her matrimonial

house and everything between the two was well for one year.

Thereafter demand of dowry was made and she was ousted

from matrimonial house. The O.P. No.2/wife has no source of

income and is doing no job. The opposite party is in service of

Electricity Department and get salary of Rs.50,000/- and has

also income from agriculture and husbandry amounting to Rs.4

lac. This witness was also not cross-examined despite

opportunity given by the court and was discharged from cross-

examination.

12. P.W.-3 Dilip Kumar Mahato stated that his sister

remained in her in-law's house properly for one year and the

petitioner/husband began to torture her for demand of dowry.

It is further stated that in the month of August, 2015 his sister

was ousted from the matrimonial house and no amount of

maintenance was ever given to her and she is unable to

maintain herself. His sister is exclusively dependent upon him.

The petitioner/husband is in Jharkhand Electricity Department,

Ranchi and get salary of more than Rs.50,000/-. Besides that,

he also had income of Rs.2.5 lacs to 3 lacs from the agriculture

and Rs.1.5 lac to 2 lacs from husbandry. This witness was also

not cross-examined on behalf of the petitioner/husband and he

was discharged from cross-examination.

13. On behalf of the petitioner/husband in oral evidence

examined R.W. 1 Dinesh Kumar Mahato (the petitioner in

this case). This witness in his examination-in-chief says that his

marriage was solemnized on 1st May, 2014 with Reena Devi and

everything was well for six months and no incident took place

in the aforesaid period. Thereafter, she began to do whatever

she liked. She used to go to Dhanbad with his brother. He was

posted as lineman and he made several efforts to bring his wife

to live with him. His mother and brother are dependent upon

him. He has no business of poultry or goat farming. He has

taken a vehicle on loan. A case was filed against him under

Section 498-A IPC in which he had gone to jail and he was also

suspended from service. He has also instituted a suit in the

court of Ranchi to bring his wife with him in which she had also

appeared. He is still ready and willing to keep his wife with him.

In cross-examination, this witness denied the suggestion

given on behalf of the petitioner that his wife remained in in-

law's house properly for 10 to 12 days. He also denied the

suggestion that due to assault his wife miscarried. He also

denied suggestion that after his marriage when his wife came

to home, he had asked for Rs.5 lacs as dowry and because of

not giving dowry, he drove her wife away from his house. He

further stated that he is getting the salary of Rs.40,000/- per

month. He also stated that his mother gets the pension from

the department but he don't know the amount of pension is

Rs.15,000/- or what. He further stated that his wife had got

abortion; but he did not incur the expense. He had not paid any

maintenance amount to his wife because he wants to live with

her.

14. In documentary evidence on behalf of the wife/O.P. No.2

also filed the photocopy of the C.P. Case No.3270 of 2018. The

information sought under RTI Act was also filed in regard to

fact the petitioner/husband is in service of the electricity

department.

15. On behalf of the petitioner/husband, no documentary

evidence was filed before the Family Court, Dhanbad.

16. In this criminal revision on behalf of the petitioner Dinesh

Kumar Mahato a supplementary affidavit was filed

annexing the photocopy of the certified copy of the

judgment dated 23rd April, 2022 passed in Original

(MTS) Suit No.495 of 2018 (Dniesh Kumar Mahto vs.

Reena Kumari) under Section 9 of the Hindu Marriage

Act, 1955.

17. Point for Determination No.(i):- On this point, petitioner

- husband, who was respondent in the maintenance case, it

has been stated that his wife has not been living with him

without any reasonable cause. This plea was taken by him in

paragraph 3 of his written statement, wherein he stated that

his wife left the matrimonial house on 22nd August, 2015

without any rhyme and reason and in spite of his several

requests she did not come back to the matrimonial home. To

this effect, the R.W.1 Dinesh Kumar Mahato has stated during

his examination-in-chief before the learned trial court that his

wife remained well for six months after solemnization of

marriage, thereafter, she began to do whatever she liked

arbitrarily and she went to Dhanbad with his brother. In

paragraph 6 of his examination-in-chief, this witness has stated

that he has filed a suit in the court of Ranchi for restitution of

conjugal rights and number of the case, he does not recollect.

His wife has appeared in that case. He also stated that he is

still ready and willing to keep her with him. This witness was

cross-examined on behalf of the petitioner/wife in which no

contrary conclusion could be drawn on behalf of the

petitioner/wife and this witness has stated that he is not giving

maintenance to his wife reason being he wants to keep her

with him.

18. Though before the learned Family Court, Dhanbad, the copy

of the order passed by the learned Additional Family Court,

Ranchi under Section 9 of the Hindu Marriage Act was not

adduced on behalf of the husband/respondent, yet in his

written statement he has taken specific pleading in

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regard to filing the suit for restitution of conjugal

rights. The husband/respondent in his cross-

examination before the learned Family Court, Dhanbad

has stated that he has filed a suit in which his wife has

also appeared. This suit was decreed by the learned

Additional Family Court, Ranchi vide order dated 23rd

April, 2022 in which issue No.III was framed which reads as

under:

III. Whether the respondent (wife) without reasonable

excuse has withdrawn herself from the society of

the petitioner (husband) ?

19. This    issue    no.III   was         decided     by   the       learned

  Additional        Family      Judge        in      favour         of     the

respondent/petitioner and against the petitioner/O.P.

No.2 and held that the wife without any reasonable excuse has

withdrawn herself from the society of the petitioner.

Admittedly, no appeal was preferred against the

judgment dated 23rd April, 2022 in which decree for

restitution of conjugal rights was passed till date.

20. On behalf of the Opposite Party No.2 in this criminal revision,

the wife/petitioner in the maintenance case, in her maintenance

application has taken this plea that she after solemnization

of marriage remained well in her matrimonial house

only for one week, thereafter she was ousted from the

matrimonial house on 22nd August, 2015. She has stated

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that she was ousted from the matrimonial house after having

beaten her and tortured her by the family members of her in-

law's house and her husband. Though, this witness was not

cross-examined on behalf of the husband, as such, her

testimony being not shaken in cross-examination shall be

admissible in evidence.

21. P.W.-2 Sukhen Roy has stated that the marriage was

solemnized on 1st May, 2014 and he is familiar with Reena Devi

and Dinesh Kumar Mahato. Reena Devi remained well in

her matrimonial house for one year, thereafter, she was

tortured for demand of dowry by the members of

matrimonial house. This witness was also not cross-

examined by the respondent/husband, so his testimony in

examination-in-chief shall be admissible.

22. P.W.-3 Dilip Kumar Mahato in his examination-in-chief

stated that Reena Devi is his sister and she remained well in

her in-law's house for one year, thereafter, she was

subjected to cruelty for demand of dowry and was also

tortured. She was ousted in the month of August, 2015

from the matrimonial house.

23. Though, all the three witnesses were not cross-examined on

behalf of the respondent/husband in maintenance case. If

their testimony is read as unrebutted, there is

contradiction in testimony of all three witnesses and

also the plea which was taken by the petitioner in her

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maintenance application. The Opposite Party No.2/wife in

her maintenance application under Section 125 Cr.P.C. has

stated that after solemnization of marriage she remained well

for one week and thereafter she was subjected to cruelty and

tortured and ultimately was ousted on 28th August, 2015 from

the matrimonial house. It is also stated that she had also filed a

C.P. Case No.1988 of 2020 under Section 498-A of the IPC

against her husband before Complaint Case No.3270 of 2018.

The copy of C.P. Case No.3270 of 2018 is on record and same

was filed on 10th August, 2018. The brother of the O.P.

No.2/wife, namely, Dilip Kumar Mahato (the P.W.-3) and

independent witness P.W.-2 Sukhen Roy both have stated

that Reena Devi remained well and properly without any

dispute in her matrimonial house for one year.

24. The marriage was solemnized on 1st May, 2014, if for the

shake of argument if she was subjected to cruelty in her

matrimonial house till 1st May, 2015, why no complaint in

regard to subjecting her to cruelty and torturing her for

demand of alleged dowry by her husband or any family

member, was ever filed on behalf of the wife before any court

till 2018 and after three years from the alleged date of

ousting her from the matrimonial house, this complaint

was lodged which was registered as C.P. Case No.3270

of 2018. In this case, admittedly, her husband was sent to jail

and he was also suspended and the said case is still pending

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before the court concerned. While on behalf of the

respondent/husband in maintenance case, R.W.1

Dinesh Kumar Mahato has stated that he has filed the

suit for restitution of conjugal rights. His wife left the

matrimonial house on her own will and went with her

brother. He had instituted a suit for restitution of

conjugal rights to bring his wife with him and the said

case for restitution of conjugal rights was instituted on

behalf of the husband and same was decreed by the

learned Additional Family Judge-II, Ranchi. This

judgment was never challenged before the appellate

court. It supports the averment/plea taken on behalf of the

petitioner/husband, who was respondent in maintenance case

that it was wife, who has withdrawn herself from the society of

the applicant without any reasonable excuse. Therefore, this

point of determination is decided in favour of the

petitioner/husband and against the Opposite Party

No.2/wife.

25. Herein the provisions of Section 125(4) Cr.P.C. become

relevant which is quoted hereunder :

"125(4). No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

26. From bare perusal of the provision of Section 125(4) Cr.P.C.

there are three grounds under which the wife is not entitled to

receive the allowance for the maintenance or the interim

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maintenance and expense of proceeding as the case may be

from her husband which are as follows :

i. If she (wife) is living in adultery;

ii. If without any reasonable cause she refuses to live with her

husband and

iii. Both (the husband and wife) are living separately by mutual

consent.

27. As such in view of Section 125(4) Cr.P.C., the wife, who has

withdrawn herself from the society of the petitioner/husband

without any reasonable excuse and she refuses to live with him

without any sufficient reason despite having instituted the case

under Section 9 of the Hindu Marriage Act for restitution of the

conjugal rights by the petitioner/husband which was decreed by

the learned Additional Family Court, Ranchi vide order dated

23rd April, 2022 in favour of the petitioner/husband and

thereafter the continuous offer being made by the petitioner to

keep her with all dignity with him; but she refused to reside

with the husband.

28. Under these circumstances as conclusion drawn after

disposal of this point of determination which is being decided in

favour of the petitioner/husband and against the wife/Opposite

Party No.2, the Opposite Party No.2 is not entitled to any

amount of maintenance.

29. Point for Determination No.(ii):- In view of analysis of

the evidence and disposal of the point for determination no.(i)

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and conclusion drawn by this Court there is no need to give any

finding on point no.(ii) which is futile in view of point for

determination no.(i) being decided against the Opposite Party

No.2/wife and in favour of the petitioner/husband.

30. Certainly the finding of the fact recorded by the Magistrate

under Section 125 Cr.P.C. cannot be altered by the revisional

court; but if the finding of fact is perverse and the court has

not taken into consideration the material evidence, so as to

come to proper conclusion then the finding of the fact can be

interfered with. Herein in this case, the learned Family Judge

while passing the order of maintenance did not give any finding

on this plea raised on behalf of the petitioner that the wife has

withdrawn from his society without any reasonable excuse and

she is not living with him without any reasonable excuse. This

plea is raised in the written statement of the petitioner/husband

and also being in evidence in the statement of

petitioner/husband, it was incumbent upon the learned trial

court to frame the point of determination on this point and to

give its finding, as such the impugned order passed by the

learned Family Court, Dhanbad needs interference.

31. The Hon'ble Apex Court in the case of Amit Kapoor v.

Ramesh Chander reported in (2012) 9 SCC 460 at

paragraph 12 & 20 has held as under :

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect

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or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused."

32. Accordingly, this criminal revision is hereby allowed.

33. Consequently, the order dated 15th February, 2022 passed by

the learned Principal Judge, Family Court, Dhanbad in Original

Maintenance Case No.454 of 2019 is hereby quashed and set

aside.

34. Let the Lower Court Records along with the copy of this

judgment be sent forthwith to the court concerned.

(Subhash Chand, J.) Rohit/A.F.R.