Jharkhand High Court

Niraj Kathuria vs The State Of Jharkhand on 13 October, 2023

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Revision No.535 of 2022
Niraj Kathuria                           ..... ... Petitioner
                           Versus
1.The State of Jharkhand
2.Palak Agarwal                         .... .... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner : Mr. Ajit Kumar, Sr. Advocate For the State : Mr. Shailendra Kumar Tiwari, Spl. P.P.

For the O.P. No.2      : Mr. Lukesh Kumar, Advocate
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C.A.V. on 27.09.2023                 Pronounced on 13.10.2023

1. Heard learned senior counsel for the petitioner, learned counsel for

the State and learned counsel for the Opposite Party No.2.

2. This criminal revision has been preferred against the order dated

18th April, 2022 passed by the learned Principal Judge, Family

Court, Dhanbad in Original Maintenance Case No.505 of 2021,

whereby the petitioner has been directed to pay Rs.40,000/- per

month as maintenance to the Opposite Party No.2 from the date

of application i.e., 4th October, 2021. The petitioner was further

directed to make payment of all arrear amount within two months

from the date of the order.

3. Brief facts of the maintenance case given on behalf of the wife

(the O.P. No.2 in this case) are that marriage of the Opposite Party

No.2 - Palak Agarwal was solemnized with Niraj Kathuria (the

petitioner in this case) according to Hindu rites and rituals on 29th

April, 2018 at Sonotel Hotel, Saraidhela Dhanbad. Since,

thereafter, the spouse joined marital consortium in the house of

the petitioner - Niraj Kathuria. After a short span of time, the

petitioner, his mother and married sisters began to show colour of

dissatisfaction of the dowry articles on the ground that the dowry

was not given befitting to the status of the petitioner. Since next

date of marriage i.e., 30th April, 2018, the O.P. No.2 became

eyesore in the matrimonial home. The entire building was put

under CCTV camera surveillance and the cell phone of the O.P.

No.2 was also taken into custody by the petitioner just to track the

activity of the O.P. No.2. The petitioner - Niraj Kathuria is the

habitual drunkard and he hobnobs with young girls to maintain his

culture. He used to commit brutal marital sex by pinching teeth on

the face of the O.P. No.2, brutally slapping her and used to injure

her private parts and even wanted carnal sex with the O.P. No.2.

The taunt, maltreatment was also given to the O.P. No.2 by the

petitioner and his family members including kith and kins. Even

free movement of the O.P. No.2 was also restricted in the

matrimonial house. The fertile brain of the petitioner acted when

he had installed spyware in the cell phone of the O.P. No.2 to

track the conversation with her parents. All the personal

documents of the O.P. No.2, such as, Aadhar, Voter ID and Pan

Card were retained by the petitioner. The golden/silver jewellery of

Streedhan was also taken in possession by the mother of the

petitioner. The voracity of further asset grew up the petitioner and

his mother demanding diamond studded platinum bracelet for the

petitioner and diamond earrings for the mother and other family

members apart from further cash amount of Rs.10 lakhs during

course of Baby Shower Ceremony. The inability was expressed by

the O.P. No.2 but she was assaulted by the petitioner even during

her pregnancy. In consequence, the female issue was born with

liver infection, who expired within 22 months. The O.P. No.2 was

forced and compelled to leave the matrimonial house on 3rd June,

2021 and presently residing at the house of her ailing parents.

The O.P. No.2 was neither provided any maintenance nor the

petitioner ever inquired in regard to the welfare of the O.P. No.2,

since desertion by the petitioner. The O.P. No.2 has no means to

survive as she faces acute financial stringency to arrange even her

basic necessity of food, cloths and shelter apart from medical

treatment. The petitioner is a man of high financial means and

lead lavish life with number of cars/house/bungalow/asset/man

force etc. He is a renowned business magnate in the coal city of

Dhanbad and operating one coal/coke producing factory in the

name of Shree Shakti Infrastructure, Parsai Govindpur, Dhanbad

from which he fetches monthly income of Rs.5 lakhs and he is also

operating another Coal/coke manufacturing plant in the name of

Bhawani Coke Industry Barwadda, Dhanbad from which he also

fetches monthly income of Rs.3.5 lacs. The petitioner has also

monthly income of Rs.4 lacs from other sources and his total

income is Rs.12.5 lacs. In view of the above, the O.P. No.2 prayed

the maintenance amount of Rs.1,25,000/- from the petitioner.

4. On behalf of the respondent (the petitioner herein), the objection

was filed in which it was averred that it was the O.P. No.2, who

had treated the answering respondent with cruelty for which he

had filed a divorce petition being O.S. No.536 of 2021 pending in

the court of learned Additional Principal Judge, Family Court,

Dhanbad. The copy of the same is annexed with the objection

filed on behalf of the respondent. Mere looking into the

documents and contents of the divorce petition, it would appear

that the life of the respondent was made miserable by the O.P.

No.2 leaving no scope for restoration of their married life. It was

also denied that the O.P. No.2 ever brought any jewellery as

stated in the petition or any dowry was ever demanded by the

respondent or his family members. The O.P. No.2 has exaggerated

the source of income of the respondent without any substantive

proof. The respondent is the income tax assesse and his income

from M/s. Shree Shakti Infrastructure of which he is one of

partner is around 3 to 4 lac yearly for last two years. The

documents would suggest that monthly income of the respondent

from M/s. Shree Shakti Infrastructure is Rs.3.35 lacs. The income

generated from M/s. Bhawani Coke Industry cannot be an income

of the respondent. There is no other source of income except from

M/s. Shree Shakti Infrastructure and also some income coming

from dividends and interest. The respondent has to maintain his

widow mother, her day to day medical expenses as she remain ill,

out of his income. The O.P. No.2 is an educated lady and capable

of earning herself.

5. On behalf of the O.P. No.2 in oral evidence examined P.W.-1

Palak Agarwal and P.W.-2 Sudhir Kumar Agarwal.

6. P.W.-1 Palak Agarwal in her examination-in-chief reiterated all

the averments made in her maintenance application and also

contended that she is still ready and willing to reside with her

husband. She has no source of income while the petitioner has

income of Rs.14 to 15 lacs per month. In cross-examination, this

witness says that she files income tax return and also showed her

income therein. She also stated that if needed she could submit

the Income Tax Return for last 4 years. At present she has no

source of income. The jewellery which she stated to be given at

the time of marriage as dowry by her parents, the same was

ancestral one. She is not aware whether the same is entered in

the balance sheet of her family member. The Divorce Petition

No.536 of 2023 is pending in the court of Family Court against her.

7. P.W.-2 Sudhir Kumar Agarwal is the father of the O.P. No.2 -

Palak Agarwal. He in his examination-in-chief corroborated all the

averments made by the O.P. No.2 in her maintenance application.

In cross-examination, this witness says that he does business of

coal and he is commission agent. He has been filing Income Tax

Return for last 30 years and his daughter also files Income Tax

Return but what is her income he has no knowledge.

8. On behalf of the petitioner - Niraj Kathuria examined R.W.-1

Aanand Agarwal. This witness in his examination-in-chief says

that on 29th April, 2018, Palak Agarwal was married with Niraj

Kathuria. On account of torture caused by Palak Agarwal upon the

petitioner and his mother, the divorce petition was filed against

her. Palak Agarwal files Income Tax Return. The Opposite Party

has annual income of Rs.9 to 9.50 lacs. He has no concern with

Bhawani Coke Industry. In cross-examination, this witness says

that he has no knowledge what is the annual income of Opposite

Party. He has no knowledge what are the assets of the Opposite

Party.

9. R.W.-2 Niraj Kathuria in his examination-in-chief says that he is

not the owner of Bhawani Coke Industries. He manufactures fly

ash bricks and his factory is Shri Shakti Infrastructure in which he

has one partner, whose name is Ankit Goenka. The only source of

his income is Shri Shakti Infrastructure. He has also some income

from the share trading as well. He further stated that his annual

income is Rs.9,16,461/-. He files Income Tax Return and his ailing

mother is also dependent upon him. After marriage, the

differences arose between him and Palak Agarwal and he filed the

divorce petition against her. In cross-examination, this witness

says that in marriage card his address is shown Bhawani Coke

Industry. His father died on 6th May, 2021. His father was the

partner in Bhawani Coke Industry along with two other partners.

Shakti Infrastructure is also the partnership firm. After death of

his father, who carries the business of Bhawani Coke Industry, he

has no knowledge. He has two cars, one is Ciaz and another is

Hyundai Creta. It is wrong to say that he has affair with any

women and with this reason he has filed the divorce petition.

10. The learned Principal Judge, Family Court, Dhanbad after

hearing the rival submissions of the learned counsel for the parties

passed the impugned judgment on 18th April, 2022 directing the

Opposite Party (the petitioner) to pay the amount of Rs.40,000/-

per month from the date of filing of the application i.e., 4th

October, 2021. The arrears of maintenance amount was also

directed to be paid within two months from the date of order.

11. Aggrieved from aforesaid judgment dated 18th April, 2022, this

criminal revision has been preferred on behalf of the Niraj Kathuria

on the ground that the impugned judgment passed by the learned

Principal Judge, Family Court, Dhanbad is illegal. The Court has

quantified the amount to be paid as Rs.40,000/- without taking

into consideration the actual income of the petitioner and without

taking into consideration the liabilities of the petitioner. The

impugned judgment passed by the learned Family Court is based

on perverse finding and the amount of maintenance awarded is

not reasonable, realistic and is oppressive and unberable to the

husband. The petitioner/husband is the sole earning member of

his family after death of his father and his ailing mother is also

dependent upon him. The annual income from M/s. Shri Shakti

Infrastructure of which he is one of partner is around 3 to 4 lacs

per annum for last two years. He has no concern with M/s.

Bhawani Coke Industry and no income can be generated from

there. The learned Family Court has not taken into consideration

all these factors and reached on the erroneous conclusion

awarding the amount of Rs.40,000/- as maintenance to the

wife/O.P. No.2. Hence, this criminal revision.

12. I have heard the learned senior counsel for the petitioner and

learned Spl. P.P. for the State as well as learned counsel for the

O.P. No.2. and perused the materials on record.

13. At the very outset, Mr. Ajit Kumar, learned senior counsel for

the petitioner had contended that by way of this criminal revision,

the petitioner has assailed the impugned judgment passed by the

learned Family Court on the point of quantum of maintenance

amount. It is further contended that the learned Family Court has

assessed the monthly income of the petitioner/husband Rs.1.20 to

1.25 lacs per month which is gross income from Shri Shakti

Infrastructure, a partnership firm, having 55 % share engaged in

manufacturing of fly ash bricks and pay works while the net

monthly income from the said partnership Firm is Rs.75,000/- to

80,000/- per month. This fact has been disclosed on behalf of the

petitioner in the affidavit filed in support of the objection on

behalf of the husband - Niraj Kathuria. In the affidavit which was

filed in regard to assets and liabilities of the non-agrarian

deponent i.e., Niraj Kathuria, it is shown that the petitioner -Niraj

Kathuria has also taken loan on Shree Shakti Infrastructure about

Rs.90 lacs. The unsecure loans on Shree Shakti Infrastructure is

Rs.1,00,24,426.11/-, car loan is Rs.4,94,551/-, other unsecure

loan is Rs.26,04,541/- and other loans are Rs.3,65,000/-. All these

facts are disclosed in the ITR itself and are also shown on behalf

of the petitioner Niraj Kathuria under the head "G Assets (movable

and Immovable) owned by the deponent".

14. The learned Family Court without taking into consideration all

these facts had awarded the maintenance amount of Rs.40,000/-

per month which is excessive and unbearable for the petitioner.

15. Per contra, learned Spl. P.P. and learned counsel for the O.P.

No.2 opposed the contentions made by the learned senior counsel

for the petitioner and contended that admittedly in Bhawani Coke

Industry earlier there were three partners including the father of

the petitioner, namely Purushotam Kumar Agarwal having 1/3rd

share in the said partnership firm. After death of petitioner's

father the said share was sold in favour of Mohan Lal Agarwal,

who is also the relative of the petitioner and for the sale of the

share in Bhawani Coke Industry, the petitioner has received a

huge amount. Admittedly, the petitioner has also income from the

dividend and interest also and he has several assets which are

shown in his affidavit itself. So far as the income of the O.P. No.2

is concerned, she has no source of income though she was filing

the Income Tax Return. The maintenance amount awarded by the

learned Family Court bears no illegality and contended to dismiss

this criminal revision.

16. The object of Section 125 Cr.P.C. is the Social Justice

and also to ensure the dignity of the individual as

enshrined in the preamble of the Constitution of the India.

17. The maintenance amount awarded by the Court must be

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reasonable and realistic. The court should avoid either of the

two extremes (i). Maintenance awarded to the wife should

neither be so extravagant which become oppressive and

unbearable for the respondent/husband; and (ii). It should

not be so meagre that it drives the wife to penury.

The object behind right to maintenance is to ensure that the

dependent spouse is not reduced to destitution or vagrancy on

account of the failure of the marriage, at the same time it should

not be punishment to the other spouse.

18. In the case in hand, as per admission of the O.P. No.2, she

has also been filing Income Tax Return for last four years,

though she has stated that she has no source of income.

The same does not inspire the confidence of the Court that

she has no source of income; while she has been filing

Income Tax Return. The O.P. No.2/wife has not disclosed her

source of income. It would also be relevant that O.P.

No.2/wife is educated and professionally qualified has

independent source of income or not; but the Court has

the duty that income of the wife should be so sufficient to

maintain the same standard of living as she was

accustomed to in her matrimonial home.

19. Simultaneously, the application of the husband also stands on a

higher pedestal than the wife even if the wife is earning, it cannot

operate as a bar from being awarded maintenance by the

husband.

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20. In the case in hand, though the wife has averred herself to be

unpaid, yet has admitted that she has been filing Income Tax

Return for last 4 years. So far as the income of the

husband/petitioner in this criminal revision is concerned, the

petitioner - Niraj Kathuria has admitted that he is partner

of Shree Shakti Infrastructure along with two other

partners. He has also shown his gross income from the

said firm, Rs.1.20 to 1.25 lacs per month; while the net

income is shown Rs.75,000/- to 80,000/- per month in the

affidavit filed in regard to affidavit file in regard to assets

and liabilities of non-agrarian deponent under column "G

Assets (movable and immovable) owned by the

deponent". In the said affidavit his self-acquired property is

shown and he has also taken loan about Rs.90 lacs on

Shree Shakti Infrastructure. The unsecure loans on Shree

Shakti Infrastructure is Rs.1,00,24,426.11/-, car loan is

Rs.4,94,551/-, other unsecure loan is Rs.26,04,541/- and

other loans are 3,65,000/-. All these facts are disclosed in

the ITR itself. So far as the firm Bhawani Coke Industry is

concerned, initially the father of the petitioner was the

partner of the same and after his death the said firm

dissolved automatically. Nothing is on record that the

petitioner became the partner in the reconstituted firm,

rather it came in evidence that the uncle of the petitioner

became partner of the reconstituted firm, namely,

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Bhawani Coke Industry. As such, the petitioner is fetching

no income from Bhawani Coke Industry after death of his

father since he did not become the partner of the

reconstituted firm after dissolution of the same.

21. From the evidence on record, it is also found that the widow

mother of the petitioner is also dependent upon him and

petitioner has also the liability to maintain his ailing

mother. The loan liabilities as stated by the petitioner on oath in

the affidavit are not denied on behalf of the O.P. No.2/wife. The

learned Family Court did not take into consideration, the

liabilities of the petitioner - Niraj Kathuria while fixing

quantum of maintenance, which are evident from the

documentary evidence on record. The learned Family Court

has assessed the income of the petitioner Rs.1.20 lacs to

Rs.1.25 lacs monthly from Shree Shakti Infrastructure

which was the gross income of the petitioner, not the net

income. The learned Family Court has taken into account the

landed property in the name of the petitioner at Pasari Barwa,

Panduki and Mouza Amaghata totaling to Rs.28,46,529/-; but

there is nothing on record that from these properties the

petitioner was fetching any income.

22. Taking into consideration, the fact that the O.P. No.2/wife who

is also filing income tax return, though no income has been

disclosed by her and the net income of the petitioner from Shree

Shakti Infrastructure which is Rs.75,000/- to 80,000/- per moth as

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per ITR, his income from the dividend and interest, the liabilities

of the petitioner in regard to loan taken on Shree Shakti

Infrastructure and also the liability of his widow mother, it appears

to this Court that the impugned judgment passed by the learned

Family Court is based on perverse finding and the amount of

maintenance awarded is not reasonable.

23. Certainly, it is moral duty of the husband to pay

maintenance to her wife so that she may also reside in the

same status as would have been in matrimonial house;

but it does not mean to squeeze milk from the husband

that the marriage becomes felony for the husband.

23.1 The Hon'ble Apex Court in the case of Chandrashekar v.

Swapnil reported in (2021) 12 SCC 624 at paragraphs 3, 5, 7

and 8 has held as under :

"3. In pursuance of the order passed by this Court, the appellant has filed IA No. 96711 of 2020 making a disclosure of his salary slips for the months of March 2016, March 2017, March 2018, March 2019 and for the period between January and July 2020. The recent salary slips of the appellant indicate that he has a gross salary of Rs 45,529. The deductions from the gross salary are on account of (i) professional tax,

(ii) Employees Group Insurance Scheme, (iii) LIC policy, (iv) General Provident Fund, (v) Karnataka Government Insurance Department deduction, and (vi) house rent allowance. In addition, it appears that the appellant had obtained a loan for which recoveries at the rate of Rs 9325 per month are being made from his salary towards a total outstanding of Rs 3.26 lakhs. Net of deductions, the salary which is payable to the appellant works out to Rs 20,979 per month.

5. The principal submission which has been urged on behalf of the appellant by the learned counsel, Mr Chinmay Deshpande is that the appellant is employed as a First Division Assistant in the Department of Health and Family Welfare of the Government of Karnataka; his salary being what has been referred to above, the payment of an amount of Rs 20,000 by way of maintenance would leave the appellant with virtually no resources to meet the maintenance requirements of his family which presently consists of his spouse and two minor children.

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After the divorce between the appellant and the second respondent, the second respondent got married again and has two children.

7. We are inclined to modify the order which has been passed by the Family Court and which has been affirmed by the High Court. This is for the reason that the appellant being an employee of the State Government, his salary slips for the relevant period which are available on the record can safely be relied upon as a true indicator of the income which he earns from his employment with the State. The deductions which are being suffered by the appellant from his salary are largely in the realm of statutory and compulsory deductions which are made from the monthly income. Apart from the statutory deductions, some amount is being deducted towards a loan outstanding which Mr Deshpande submits was obtained to meet the expenses incurred on the ailment of the mother of the appellant. The appellant has shown his bona fides by paying an amount of Rs 6.64 lakhs. He has made a disclosure of his salary slips. The net income being in the range indicated above, payment of Rs 20,000 per month to the first respondent will leave no resources to maintain his other two children and family. Hence, some scaling down is required. But an arrangement to provide maintenance to the first respondent until he completes the first degree course after High School will be necessary so that the first respondent becomes self-supporting and can live in dignity. Both the learned counsel have been fair and their approach to a human issue needs to be noticed and appreciated. They have truly performed the role of officers of the court.

8. The Family Court had directed the appellant to provide maintenance to the first respondent till he attains the age of majority. We are conscious of the fact that we are extending the period for maintenance in the terms indicated above. However, in issuing this direction, we have borne in mind two significant aspects : firstly, the maintenance payable by the appellant has been reduced from rupees twenty thousand per month to rupees ten thousand per month; and secondly the past arrears have been capped at the amount of Rs 6.64 lakhs which has already been paid. Hence, exercising our jurisdiction under Article 142 of the Constitution we are inclined to pass an order in the interest of justice to envisage that maintenance at the reduced rate of rupees ten thousand per month will be provided by the appellant to the first respondent until he completes his first degree course following upon the High School Board examinations."

24. The learned Family Court while assessing the amount of

quantum of maintenance has failed to consider the liabilities of the

petitioner and maintenance @ Rs.40,000/- was awarded by the

learned Family Court is slightly on higher side.

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25. In view of discussions as made hereinabove and the settled

legal proposition of law as laid down by the Hon'ble Apex Court,

the criminal revision is partly allowed. The judgment and order

dated 18th April, 2022 passed by learned Principal Judge, Family

Court, Dhanbad in Original Maintenance Case No.505 of 2021 is

modified to the extent that the petitioner is directed to pay

Rs.25,000/- per month from the date of application i.e., 4th