Jharkhand High Court

Animesh Rajbanshi vs The State Of Jharkhand on 10 October, 2023

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Revision No.212 of 2022
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Animesh Rajbanshi, son of Ashis Kumar Rajbanshi, resident of Bootymore Ekta Nagar, Behind Gumla Petrol Pump, Tangratoli, P.O. Buty, P.S. Sadar, District Ranchi at present working as Civil Cook in Indian Army, Artillery Centre, Nasik Road, District Nasik (Maharashtra ...... ...... Petitioner Versus

1. The State of Jharkhand

2. Indrani Rajbanshi, wife of Animesh Rajbanshi and daughter of Ranjeet Kumar Biswas, resident of village-Heshagarha, P.O. & P.S. Mandu, District Ramgarh.

3. Anwi Rajbanshi, daughter of Animesh Rajbanshi (minor, represented through her mother, O.P. No.2 being her natural guardian, resident of village-Heshagarha, P.O. & P.S. Mandu, District Ramgarh ..... .... Opposite Parties

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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner       : Mr. Pankaj Srivastava, Advocate
For the State            : Mr. Bishwambhar Shastri, APP
For the O.P. No.2        : Mr. Shail, Advocate
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Order No.12/ Dated: 10th October, 2023

1. Learned counsel for the petitioner, learned counsel for the State and

learned counsel for the opposite party Nos.2 & 3 are present.

2. This Criminal Revision has been preferred on behalf of the petitioner

against the judgment dated 11.02.2022 passed by the learned Principal

District Judge-cum-Family Judge, Ramgarh in Original Maintenance Case

No.92 of 2015, whereby the learned Court below has directed the petitioner

to pay maintenance amount of Rs.6000/- per month to the opposite party

No.2/ wife and Rs.2000/- per month to the opposite party No.3/ minor

daughter.

3. The brief facts leading to this Criminal Revision are that the

applicant/wife had moved the maintenance application under Section 125 of

the Code of Criminal Procedure with these allegations that her marriage was

solemnized with the petitioner on 16.01.2013 according to Hindu rites and

customs. Out of the said wedlock, one child was born out. The family

members of the in-law's house began to torture and subjected to cruelty for

non-fulfillment of demand of dowry and lastly, she was ousted from her

matrimonial house in the month of October, 2014 along with her minor

child. It is further alleged that the Opposite Party No.2 is unable to maintain

herself and her daughter while the petitioner is doing a job in Indian Army as

Cook and getting salary of Rs.30,000/- per month and he is earning

Rs.10,000/- per month from the other sources, accordingly, prayed for

maintenance amount of Rs.20,000/- per month.

4. Against the maintenance application objections were filed on behalf of

the petitioner/husband, in which, the allegations made in the maintenance

application were denied. It is also contended that the petitioner/husband was

hopeful of leading a peaceful, progressive and harmonious conjugal life with

opposite party No.2/wife. The petitioner/husband tried his best to co-operate

with the wife in every sphere of life, but failed for the same, on account of

the cruel behavior, immoral character and indisciplined life of opposite party

No.2/wife. On 21.11.2014, the opposite party No.2/wife left the matrimonial

house and she is able to maintain herself. She has completed B.COM degree

and got computer training as well as training for ICICI Prudential while she

was at her matrimonial home and now she is earning Rs.20,000/- per month

by running a coaching center in the name and style of "Indrani Coaching

Center". It was admitted by the petitioner/husband that he is working as

Cook in Indian Army but denied that he is getting salary of Rs.30,000/- per

month or that he has earning of Rs.10,000/- per month from other sources

and claimed that he is getting salary of Rs.20000/- to 25,000/- per month. In

view of the above, the petitioner/husband has prayed to reject the

maintenance application.

5. On behalf of the opposite party No.2/wife, examined altogether five

witnesses i.e. P.W.-1, Ranit Biswas; P.W.-2, Rina Biswas; P.W.-3, Gita

Biswas; P.W.-4, Gopi Nath Panda and; P.W.-5, Indrani Rajbanshi and

she has not filed any documentary evidence in support of her claim. In

defence, the petitioner/husband has examined two witnesses i.e. O.P.W-1,

Draupadi Rajbanshi (mother of the petitioner) and O.P.W.-2, Korobi

Dutta (relative of the petitioner) and in documentary the petitioner got

exhibited a self-declaration of the O.P. No.2 wherein she wrote that the

mistake which has committed shall not be repeated, which was marked as

Ext.-A, besides that photocopies of 25 sheets of conversation between the

O.P. No.2 and Amit Mohali and in some sheets profile pictures of O.P. No.2

was available out of which 3 sheets have been marked as X, X/1 & X/2 on

identification by P.W.-1 (father of O.P. No.2).

6. The learned Court below after hearing the rival submissions of the

learned counsel for the parties, passed the impugned judgment dated

11.02.2022 passed by the learned Principal District Judge-cum-Family

Judge, Ramgarh, whereby the learned Court below has directed the

petitioner to pay maintenance amount of Rs.6000/- per month to the opposite

party No.2/ wife and Rs.2000/- per month to the opposite party No.3/ minor

daughter.

7. Aggrieved from the impugned judgment dated 11.02.2022, this

Criminal Revision has been preferred on behalf of the petitioner/husband on

the ground that the wife is leading an adulterous life.

8. Heard the rival submissions of the learned counsel for the

petitioner/husband and learned counsel for the State and learned counsel for

the opposite party No.2 and perused the materials available on record.

9. At the very outset, learned counsel for the petitioner/husband has

submitted that he has challenged the impugned order on the sole ground that

the learned Court below has not framed the issue on the point of

determination in regard to the plea raised by the petitioner that the wife was

leading adulterous life. Even the petitioner has also adduced the evidence to

this effect, but the learned Court below neither framed the issue to this effect

nor recorded the statement while it is also one of the grounds for rejecting

the maintenance application filed under Section 125 of the Code of Criminal

Procedure.

10. Learned APP appearing on behalf of the State and learned counsel

appearing on behalf of the opposite party No.2 have opposed the contentions

raised by the learned counsel for the petitioner and contended that the plea

raised by the petitioner in regard to adultery is itself contrary. At one point

the petitioner/husband says that the opposite party No.2/ wife was leading

adulterous life with Amit Mohli, Jay Banerjee and Dilip Roy, this ground is

false, as such, on this ground, the impugned order cannot be interfered with.

11. From the perusal of the impugned judgment passed by the learned

Court below, it is found that despite the specific plea taken by the petitioner/

husband in his objection, this issue, which was denied by the opposite party

No.2/wife was not framed by the learned Court below while deciding the

maintenance application.

12. So far as the contentions made by the learned counsel for the opposite

party No.2/wife that the plea raised by the petitioner/husband is false reason

being that the petitioner/husband has shown adulterous conduct of the

opposite party No.2/wife with different persons and the same cannot be

relied upon as all these plea would have been raised at the time of disposal

of the very point of determination, had the learned Court below framed the

issue to that effect.

13. Be that as it may, once the husband has raised the plea to this effect

that the wife is residing in adultery, it is the duty of the Court to frame the

issue on the point of determination and decide the same in the light of oral as

well as documentary evidence on record. Herein it would be pertinent to

mention Section 125(4) of the Code of Criminal Procedure, 1973 which

reads as under:

"(4) No wife shall be entitled to receive an 5[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] 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."

14. In view of the provisions of Section 125(4) of the Code of Criminal

Procedure, 1973, it was incumbent upon the learned trial Court to go through

the pleadings of the parties on record to determine the point of determination

on this issue and record its finding in view of the evidence adduced oral as

well as documentary on behalf of the parties.

15. Accordingly, the impugned judgment dated 11.02.2022 passed by the

learned Principal District Judge-cum-Family Judge, Ramgarh, whereby the

learned Court below has directed the petitioner to pay maintenance amount

of Rs.6000/- per month to the opposite party No.2/ wife and Rs.2000/- per

month to the opposite party No.3/ minor daughter bears infirmity and the

same is required to be remitted back to the learned Court below. As such, the

impugned judgment dated 11.02.2022 is hereby set aside.