Anand Sona Pawaria vs Mrs. Surudhani Soren
2023 Latest Caselaw 2942 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Revision No.143 of 2022
Anand Sona Pawaria                           ..... ... Petitioner
                           Versus
Mrs. Surudhani Soren                  .... .... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner : Mr. Durga Charan Mishra, Advocate For the Opposite Party : Mr. Ashish Kumar, Advocate

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C.A.V. on 08.08.2023 Pronounced on 17.08.2023

1. Heard learned counsel for the petitioner and learned counsel for

the Opposite Party.

2. The present criminal revision has been preferred against the order

dated 15th December, 2021 passed by the learned Principal Judge,

Family Court, Dumka in Original Maintenance Case No.80 of 2018,

whereby and whereunder the petitioner has been directed to pay

Rs.8,000 per month to the petitioner as maintenance allowance

from the date of institution of the petition under Section 125

Cr.P.C. i.e., 28th November, 2018. The petitioner was further

directed to pay the arrears of maintenance amount in 12 equal

installments per month since the date of the order.

3. The brief facts leading to this criminal revision are that the

Opposite Party - Surudhani Soren had filed a petition under

Section 125 Cr.P.C. against the petitioner - Anand Sona Pawaria

with these averments that the she was married with the petitioner

in the year 1977 according to Santhal customs and usage in the

locality. The Opposite Party went to her matrimonial house and

the marriage was conjugated and the conjugal life were observed

happily for 12 years. Both parties are governed by the traditional

Santhal customary law. No issue was born out of the wedlock. The

petitioner left the Opposite Party in his village house at Jamjori

and went to his place of service and now the petitioner has been

residing at Saraiyahat Bazar. The petitioner was posted at Gram

Panchayat of Chorkheda and Thekcha Gongha Panchayat as a

Village Level Worker in Jarmundi Block. The petitioner maintained

the Opposite Party till the year 1998, thereafter, he began to

neglect the Opposite Party and even there was no talking terms

between them. The Opposite Party has been residing in the very

house of the petitioner for more than two years but he did not

look after her or maintained her. The Opposite party has no source

of income and is unable to maintain herself. A panchayat was also

called but the petitioner did not face the panchayat. The Opposite

Party is the legally wedded wife of the petitioner and it is his duty

to maintain her. The petitioner is a government servant and he is

having handsome income from the salary not less than

Rs.40,000/- per month. Accordingly, prayed the amount of

Rs.20,000/- as maintenance amount from the petitioner.

4. On behalf of the petitioner, the written statement was filed in

which he admitted the marriage with the Opposite Party in the

year 1977 as per Santhal customary law. The petitioner was a

government employee and he had to reside at the place of posting

and this is the reason he was not residing at his native village. The

petitioner never neglected the Opposite Party as stated. This

petition has been filed on the basis of the wrong averments. The

entire property and agricultural produce was in possession of the

Opposite Party. It is wrong to say that the petitioner is getting

pension of Rs.40,000/- per month. The petitioner is suffering from

various disease and the medical prescription are being annexed

herewith but still the petitioner is ready to keep the Opposite with

all respect. The petitioner has retired and till date he has not

received the pension.

5. On behalf of the Opposite Party/wife in oral evidence examined

P.W.-1 Siman Pawaria, who is the cousin brother of the

petitioner/respondent, P.W.-2 Ramesh Soren, P.W.-3 Balak

Hembrom, P.W.-4 Chhota Bishu Pawaria and P.W.-5 Surudhani

Soren (the Opposite Party/wife).

6. On behalf of the petitioner/husband in oral evidence examined

R.W.-1 Dulal Kumar Mandal, R.W.-2 Lukhiram Pawaria, R.W.-3

Okindo Hembrom and R.W.-4 Anand Sona Pawaria (the petitioner

himself).

7. On behalf of the Opposite Party/wife, no documentary evidence

was adduced.

8. On behalf of the petitioner/husband in documentary evidence

adduced photocopy of four medical prescriptions of his treatment

pertaining to ailment which were marked X, X/1, Y and X/2 for

identification. Photocopy of Pension order of Anand Sona Pawaria

issued by the Accountant General, Jharkhand, Ranchi was marked

Ext. A and amended pension paper is marked Ext.B.

9. The learned Principal Judge, Family Court, Dumka after hearing

the rival submissions of the learned counsel for the parties allowed

the petition of the Opposite Party/wife vide judgment dated 15th

December, 2021, wherein the Petitioner/husband was directed to

pay Rs.8,000/- per month as maintenance from the date of

presentation of the application i.e., 28th November, 2018. It was

also further directed that the arrears of the maintenance amount

was to be deposited by the petitioner/husband in 12 equal

installments per month from the date of the judgment.

10. The petitioner/husband being aggrieved with the impugned

judgment, preferred this criminal revision on the grounds that the

impugned order passed by the learned court below is bad in the

eyes of law and there was no willful neglect on the part of the

petitioner/ husband in maintaining his wife. The learned Principal

Judge, Family Court has failed to appreciate this fact that no

compliant was ever filed prior to 2018 while the marriage was

solemnized in the year 1977. The learned court below has failed to

appreciate the Ext.A in which the actual pension which the

petitioner is getting is Rs.22,400/- per month. The quantum of the

maintenance is exorbitant which the petitioner/husband is unable

to pay. If the impugned judgment is not set aside, it would

occasion complete miscarriage of justice.

11. I have heard the learned counsel for the parties and perused

the materials available on record as well as the finding recorded

by the learned Family Court in the impugned judgment.

12. In order to decide the legality and propriety of the impugned

judgment passed by the learned Principal Judge, Family Court,

Dumka, it would be pertinent here to reproduce the evidence on

behalf of both the parties.

13. On behalf of the Opposite Party/wife altogether five witnesses

were examined. P.W.-1 is Siman Pawaria. He in his

examination-in-chief stated that Anand Sona Pawaria was married

with Anand Sona Pawaria. It is further stated that since November,

2018 Surudhani came to her parental house and is residing there

till now and the petitioner/husband is not taking care of her.

Anand Sona Pawaria has also performed the second marriage and

had two children out of the second's marriage wedlock. He is

getting salary of Rs.50,000/- per month. This witness in his cross-

examination has stated that the petitioner (wife) used to look after

the agricultural land and she was all in all of all the agricultural

crop. Anand Sona Pawaria is in service or retired he is not aware

but he has attained the age of superannuation.

13.1 P.W.-2 Ramesh Soren in his examination-in-chief says the

petitioner and the Opposite party after marriage lived as husband

and wife at village Jamjori but since November, 2018 she is not

residing there and now she is residing in Haldidihi village. Anand

Sona Pawarai was working as Village Level Worker but he has no

knowledge that where he was posted. Surudhani has left the

matrimonial house reason being that she was not maintained

there. In cross-examination, this witness says that he is not aware

whether Anand Sona Pawaria had retired.

13.2 P.W.-3 Balak Hembrom in his examination-chief stated that

after marriage Surudhani Soren and Anand Sona Pawaria lived

happily for 12 years. Thereafter, the petitioner/husband has

married with another lady. In cross-examination, this witness says

that he is not aware whether Anand Sona Pawaria has been

suffering from any disease.

13.3 P.W.-4 Chhotabishu Pawaria in his examination-in-chief

says that out of wedlock of Surudhani Soren and Anand Sona

Pawaria no issue was born, so he married with another lady. Her

husband did not maintain her so she filed this petition. In cross-

examination, this witness stated that he is not aware whether

Anand Sona Pawaria has retired or is in service.

13.4 P.W.-5 Surudhani Soren, the wife herself in her

examination-in-chief supported the averments made in the

maintenance petition and in cross-examination she stated that

after marriage her husband used to come to the village. The

agriculture work was being done on Batai by the labourer and from

the agricultural produce she could not maintain herself. Anand

Sona Pawaria had solemnized second marriage and he had retired

recently or not she is not aware. He does not take care of her and

out of second marriage he had five children.

14. On behalf of the petitioner/respondent (husband) examined

R.W.-1 Dulal Kumar Mandal. In his examination-in-chief, this

witness stated that the marriage was solemnized in the year 1977

according to Santhal customs and usage. When no issue was born

out of the wedlock, the petitioner/husband solemnized second

marriage in the year 1997 with the consent of his former wife. Out

of wedlock of the second wife Daisy Hansda and the respondent

there are five issues. The respondent-husband had kept the

petitioner-wife with all dignity and the respondent had retired. It

was told by Anand Sona Pawaria to him that his former wife was

creating pressure upon him for second marriage.

14.1 R.W.-2 Lukhiram Pawaria also stated that the respondent-

husband had retired. He remains ill and his second marriage was

solemnized with the consent of the former wife.

14.2 R.W.-3 Okindo Hembrom also stated that marriage of the

Opposite Party-wife with the respondent-husband was solemnized

in the year 1977 and there was no issue from the first wife, so the

second marriage was solemnized with Daisy Hansda from whom

the five children were born. The agriculture work was being done

by the Opposite Party-wife under her own supervision and the

petitioner/husband has retired.

14.3 R.W.-4 Anand Sona Pawaria is the husband of the Opposite

Party and has stated that he was married with Surudhani Soren in

the year 1977 according to Santhal customs. No issue was out of

the first marriage and his first wife had created pressure upon him

for the second marriage and with her consent he married with

Daisy Hansda in the year 1997. Out of the second marriage, there

are five children. He was Village Level Worker and he resided at

the place of posting. The agricultural work was looked after by his

first wife. He also kept his wife with all dignity and love. He has

retired from the post of Village Level Worker and till date he is not

getting any pension.

15. In view of the averments made in the petition and also the

written statement the issues between the parties are as

follows :

i. whether the husband/petitioner herein had neglected to

maintain the wife/Opposite Party herein ?

ii. What amount the Opposite Party/wife is entitled to get as

maintenance ?

16. So far as the Issue No.I is concerned, admittedly the marriage

was solemnized in the year 1977. As per averments made in the

maintenance application, the petitioner/husband maintained the

Opposite Party till the year 1998 and thereafter he began to

neglect her. The Opposite Party Surudhani Soren in her cross-

examination has stated that after second marriage by her

husband in the year 1997 her husband did not take care of

her. Whenever she fell ill, the neighbours used to look

after her. She left the in-law's house in November, 2018

and came to her parental house. She further stated that the

second marriage was not done with her consent. It is also correct

to say even after second marriage occasionally her husband came

to her house and look after the agricultural work. Whatever the

income was from the agriculture, the same was given to

the labour and she could not maintain herself. The

ultimate control of the agriculture produce was of her

husband and not of her. She was not aware whether her

husband has retired.

In regard to neglecting by the petitioner/husband to the

Opposite Party/wife, P.W.-1 Siman Pawaria, P.W.-2 Ramesh

Soren, P.W.-3 Balak Hembrom and P.W.-4 Chhotabishu

Pawaria also gave the same kind of statements that after second

marriage, the Opposite Party/wife was not maintained by her

husband and she could not maintain herself from the agricultural

income.

17. To the contrary the petitioner/husband - Anand Sona Pawaria,

R.W.-4 had stated that he never neglected his wife from

maintaining her. Since he was in service he remained at several

places of posting and with the consent of his first wife he married

with Daisy Hansda in the year 1997 and up to November, 2018 the

Opposite Party/wife remained in matrimonial house. She was

maintained by him and whatever the income was from the

agriculture the same was utilized by his first wife and whenever

he had come to his house, he used to know in regard to welfare of

his wife.

17.1 The respondent's witnesses, namely, Dulal Kumar Mandal,

R.W.-1, Lukhiram Pawaria, R.W.-2 and Okindo Hembrom,

R.W.-3 also gave the same kind of statements that the Opposite

Party/wife lived in her matrimonial house till the year 2018 and she

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used to maintain herself from the agricultural produce and her

husband never neglected her.

18. The Hon'ble Apex Court in the case of Rajathi vs. C. Ganesan

reported in (1999) 6 SCC 326 held that the burden of proof lies

upon the husband that he did not neglect the wife or refuse to

maintain wife.

19. From the evidence adduced on behalf of both the parties, it is

found that after solemnization of marriage in the year 1977, the

husband of the petitioner got second marriage with Daisy Hansda

in the year 1997 and after solemnization of second marriage the

five children were born out of wedlock of his second wife and the

petitioner--Anand Sona Pawaria. The petitioner has admitted this

fact that he remained at several place of posting, so he

occasionally came to his ancestral house, where his former wife

was residing. All the witnesses adduced on the Opposite Party

stated that there was no one to look after her, so whenever she

fell ill it was the neighbour who looked after her. As such it is

proved that the petitioner--Anand Sona Pawaria had neglected his

wife after solemnization of second marriage. Though the Opposite

Party resided in her in-law's till 2018 and she maintained herself

from the agriculture produce, yet after 2018 the whole control and

supervision was taken by the petitioner/husband in his hand and it

was the very reason that the Opposite Party/wife has left the in-

law's house and went to her parental house in the year 2018.

Accordingly Issue No.I is decided in favour of wife and against the

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husband.

20. So far as the Issue No.II is concerned, the evidence adduced

on behalf of the petitioner--Anand Sona Pawaria, it appears that

he had retired from the post of VLW in the year 2019. He could

not get the pension. The petitioner and his all witnesses have

stated that they are not aware whether Anand Sona Pawaria has

retired or not; but from the evidence adduced on behalf of the

husband, it is proved that he had retired from the post of VLW.

From the amended Pension letter which is filed on behalf of the

petitioner it is found that Anand Sona Pawaria got

appointment on 12th January, 1996 and retired on 28th

February, 2019. The total period of his service is 24 years

1 month and 16 days. The last salary on the date of

retirement of the petitioner was Rs.44,800/- and name of

members in his family are shown 1. Smt. Surudhani Soren,

2.Daisy Hansda and five children. The pension was

sanctioned to the petitioner on 20th March, 2021 which is

the date of issuance of pension order and the amount of

his pension is shown as Rs.22,400/- per month. In this

pension order the name of Surudhani Soren and three children are

shown. Therefore, in view of pension order, the income of

petitioner/husband after his retirement is Rs.22,400/-

and this pension order was issued to him on 20th March,

2021. Prior to this pension order and after retirement on

28th February, 2019, there was no source of income of the

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petitioner except the agricultural land. After his

retirement on 28th February, 2019, the pension of

Rs.22,400/- per month was payable to him since 1st

March, 2019, therefore, in view of the aforesaid

documents, the income of the petitioner from the pension

is assessed to be Rs.22,400/- per month. The fact of income

being in personal and particular knowledge of the husband, the

burden of proof under Section 106 of the Evidence Act is

discharged by the husband.

So far as the liability of petitioner/husband is concerned,

admittedly he solemnized second marriage with Daisy Hansda and

out of wedlock he had five children. As per Santhal customs there

is no bar of second marriage. From the evidence adduced on

behalf of both the parties, it is also found that the Opposite

Party/wife was also consenting party in getting married by the

petitioner with another lady for the purpose of issue. Nonetheless

being the government servant he cannot marry with second wife

in subsistence of first wife.

21. Therefore keeping in view the liabilities of the petitioner and his

income from the pension amounting Rs.22,400/- more than 1/5th

of the pension amount of petitioner is awarded to the Opposite

Party/wife as maintenance i.e., approx Rs.5,000/- per month. The

learned Family Court while fixing the quantum of maintenance as

Rs.8,000/- per month has assessed the pension of the petitioner

to be Rs.44,800/-; while the said amount was the last salary which

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he was getting at the time of retirement. As per pension order, the

pension is shown Rs.22,400/- per month. Accordingly, the Issue

No.II is decided hereinabove.

22. In view of analysis of the oral and documentary evidence, the

quantum of the maintenance is modified from Rs.8,000/- to

Rs.5,000/- per month from the date of filing of the maintenance

application by the Opposite Party/wife.

23. In view of the conclusions drawn from Issue Nos. I & II, the

present criminal revision is hereby partly allowed, so far as it

relates to quantum of maintenance. Accordingly the order dated

15th December, 2021 passed by the learned Principal Judge, Family

Court, Dumka in Original Maintenance Case No.80 of 2018 is

modified to the extent of quantum from Rs.8,000/- per month to

Rs.5,000/- per month. The arrears of maintenance amount shall

be payable in 12 equal installment per month from the date of

filing of maintenance application.

24. It is made clear that if any amount which has been paid earlier

by the petitioner/husband, the same shall be adjusted accordingly.

25. Let a copy of this order be communicated to the court

concerned through 'FAX'.

(Subhash Chand, J.) Rohit/AFR