Conrad Cook @ Joseph Andrew Cook vs The State Of Jharkhand
2023 Latest Caselaw 680 Jhar

                                     1           Cr. Revision No. 755 of 2022



    IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Revision No. 755 of 2022
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Conrad Cook @ Joseph Andrew Cook @ Conrad J Cook ... ... Petitioner Versus

1. The State of Jharkhand

2. Sarah Marlene Cook, daughter of Conrad Cook @ Joseph Andrew Cook @ Conrad J Cook

3. Merry Stella Cook @ Mary Stella Michael ... ... Opp. Parties

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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

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   For the Petitioner       :   Mr. Anjani Kumar, Advocate
   For the State            :   Mrs. Priya Shrestha, Spl.P.P.
   For the O.P. Nos. 2 & 3 :    Ms. Debolina Sen, Advocate
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   Order No. 05: Dated: 9 February, 2023
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1. Heard the learned counsels appearing for the petitioner, O.P. Nos. 2 & 3 and for the State.

2. This criminal revision is directed against the order dated 23.06.2022 passed by learned trial court whereby and whereunder the petition filed by the petitioner dated 18.08.2021 and rejoinder dated 19.05.2022 regarding the maintainability of the Original Maintenance Case No. 1 of 2021 filed by O.P. No. 2 (daughter of petitioner) was dismissed. Although the case is pending in the learned court below i.e. court of the learned Principal Judge, Family Court, Chaibasa .

3. It is submitted on behalf of the petitioner that O.P. No.2 has filed a petition u/s 125 of Cr.P.C. before the concerned court below which was registered vide Original Maintenance Case No. 01/2021 stating therein inter-alia, that the petitioner was the father of O.P. No. 2 and the petitioner was married to O.P. No. 3. The divorce was granted by a decree of divorce dated 22.06.2015 in Matrimonial Suit No. 51 of 2014 passed by the concerned court Principal Judge, Family Court, Chaibasa with respect to the marriage of petitioner

and O.P. No. 3 and thereafter the O.P. No. 2 alleged in her petition that she was driven out by the petitioner from his house and she came to her maternal grandfather home along with her mother O.P. No. 3 and minor brother namely N. Ronaldo J. Cook and staying there since long. It is further stated by the O.P. No. 2 in her petition that because of the mercy of her maternal relative she pursued her study in B.B.A. from Sarla Birla University, Ranchi, but, due to current pandemic covid-19 the maternal relatives of the O.P. No. 2 stopped their financial supports and consequently the financial condition of the O.P. No. 2 became very dilapidated and pitiable. It has also been stated by the O.P. No. 2 in her petition that since the day of the matrimonial dispute between the petitioner and O.P. No. 3, her maintenance and care was left at the mercy of maternal relatives to meet her day to day expenses, study, medical and other expenses. It has further been stated that the O.P. No. 2 was unmarried and unemployed and a patient of asthma having no independent source of income while the petitioner was an Officer in Indian Railway posted at Chakradharpur Railway Division having a sound monthly salary of around Rs. 80 thousand and around Rs. 25 thousand monthly income from various movable and immovable properties. It has further been stated that O.P. No. 2 had approached several times to the petitioner for getting her medical treatment or other expenses but the petitioner intentionally refused to meet any kind of expense or relief to the O.P. No. 2, being the daughter of the petitioner, who was an employee of the Indian Railway and in the eyes of law she was entitled to get the relief form the petitioner. It has further stated that O.P. No. 2 is still under the constant medical care for which the petitioner is liable to bear the substantive expenditure and due to poor economic and medico crisis the O.P. No. 2 had approached the petitioner several times but he flatly refused to hear her grievances and refused to redress and meet any

kind of basic requirement and therefore, this case was instituted, inter-alia, on the ground as stated under section 125 of Cr.P.C.

4. It has further been submitted on behalf of petitioner that after institution of the case u/s 125 of Cr.P.C., the petitioner appeared and at the outset raised the objection before the learned court below that the O.P. No. 2 was major at the time of the filing of the application and further she was not entitled to get the relief u/s 125 1(a) and 125 (1) (c) of Cr.P.C. because she did not disclose as to whether O.P. No. 2 has filed the petition either u/s 125 (1)(a) or 125 (1)(c) of Cr.P.C. She has not produced any proper documents to that effect and the learned court below without applying its judicial mind rejected the prayer of the petitioner and the learned court below is now proceeding with the case which is pending for the maintenance u/s 125 of Cr.P.C. and therefore the impugned order is bad in law and fit to be set aside.

5. On the other hand, learned counsel for the O.P. No. 2 has vehemently opposed the contentions raised on behalf of the petitioner and submitted that the O.P. No. 2 is admittedly the child of the petitioner and she is entitled for the maintenance even after she is major u/s 125 (c) of Cr.P.C. and the case is still pending in the court below and therefore, the O.P. No. 2 has an ample opportunity to show evidence for grant of maintenance for mental and physical abnormality or any injury due to which she is unable to maintain herself in order to get the maintenance u/s 125 (1) (c) and to that effect the petitioner will also have an opportunity to rebut the claim of the petitioner and therefore this petition is pre-matured because the case is still pending in the court below for the final adjudication of the maintenance and therefore this case is fit to be dismissed in absence of any illegality in the impugned order.

6. Having heard the parties and perused the record of this case.

7. At the outset it is evident form the impugned order that it is

an admitted fact the O.P. No. 2 is the daughter of the petitioner. It is also found that the O.P. No. 2 is major. She has claimed the maintenance u/s 125 (1) (c) of Cr.P.C. which reads as under:-

"125. Order for maintenance of wives, children and parents.-- (1) If any person having sufficient means neglects or refuses to maintain--

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself,"

8. Further it is also an admitted fact that the parents of the O.P. No. 2 have dissolved their marriage (between petitioner and O.P. No. 3) by the order of the court vide order dated 22.06.2015 by a competent court of law. In order to appreciate the impugned order passed by the learned court below it is necessary to set out the relevant portion of the impugned order which reads as under:

"So far as, the maintainability of petition is concerned, the court is of the view that though, the petitioner is said to be a major daughter but still she is the student of BBA and she has no source of income. There is allegations and counter allegations by the parties in regard to income of the petitioner as well as the reason of physical or mental abnormality or injury unable to maintain her, so, the court is of the view that the point of maintainability cannot decide on haste and without leading evidence on oath. Unless and until, both parties adduced evidence on oath and the documents are duly proved, it would not be just and proper to evaluate the evidence only on the basis of oral argument.

The provision has been enacted for social justice and specially to protect women and children and also old and infirm poor parents and falls within the constitutional sweep of article 15(3) reinforced by article 39 of the Constitution of India. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves (AIR 2005 SC 1809).

Object of Legislature:- It is a measure of social justice to prevent vagrancy and destitution. It was noticed in leading case of Ramesh Chandra Kaushal Vrs. Veena Kaushal, 1978 4 SCC 70 and reiterated in leading case of Chaturbhuj Vrs. Sita Bai (2008) 2 SCC 316 that the relief U/s 125 of Cr.PC falls within the Constitutional Sweep of Article 15(3) reinforced by Article 39 of the Constitution of India.

Considering, the entire facts and circumstances emerging from case in hand and discussions made above, this court is of the view that at the beginning and at the initial stage of the trial the truth, veracity and affect of the evidence which the parties has to adduce are not to be meticulously judged, nor is any weight to be attached to the probable defence of the opposite party. The standard of the test and judgment which is to be finally applied before recording a finding regarding the maintainability otherwise of the O.P. petition is not exactly to be applied at this stage. At this stage any order on the point of maintainability of petition would not be just and proper without recording evidence, therefore, the petition filed by O.P. No.1 (father) regarding maintainability of the original maintenance case is dismissed.

However, both O.P. parties has filed their show cause, so, petitioner is directed to furnish the list of witness and record is fixed for evidence on behalf of petitioner on 30.06.2022."

9. Having gone through the aforesaid findings of the learned court below, this Court does not find any illegality or any irregularity in the impugned order. It goes without saying that the petitioner will have ample opportunities to rebut all the claims of the O.P. No. 2 by adducing evidences at the appropriate stage of the proceedings pending in the court below. The matter is still pending in the learned court below for award of the maintenance u/s 125 of Cr.P.C. and no final or interim order has yet been passed on the point of maintenance and therefore, the revision application is pre mature and wholly mis-conceived and therefore, this Criminal Revision application is dismissed being devoid of merit.

(Navneet Kumar, J.) MM