Jharkhand High Court
Nilam Seth vs The State Of Jharkhand on 1 February, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Revisional Jurisdiction)
Cr. Revision No.889 of 2022
1. Nilam Seth, aged about 37 years, wife of Ajay Seth, Daughter of
Jageshwar Ram,
2. Aryan Seth, through legal guardian Nilam Seth, aged about 8 years, son
of Ajay Seth,
3. Akanshi Seth, through legal guardian Nilam Seth, aged about 11 years,
Daughter of Ajay Seth
All residents of Village-Monohar Press Sonapati Gali, PO
Jhumritelaiya, PS Telaiya, District Koderma.
At present resident of Village-Sahana Road, PO & PS Koderma,
District Koderma ..... ... Petitioners
Versus
1. The State of Jharkhand
2. Ajay Seth, aged about 38 years, son of Kailash Prasad, Resident of
Village-Manohar Press Sonapati Gali, PO Jhumritelaiya, PS Telaiya,
District Koderma. .... .... Opposite Parties
(Heard on 04.01.2024)
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PRESENT
CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mr. Avilash Kumar, Advocate
For the State : Mrs. Nehala Sharmin, Spl. PP
For the OP No.2 : Mr. Manoj Kr. Sah, Advocate
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JUDGMENT
CAV On 04th January 2024 Pronounced on 1st February 2024
Per, Subhash Chand, J.
The instant criminal revision is on behalf of petitioners against
the judgment dated 20.06.2022 passed by the learned Principal Judge,
Family Court, Koderma in Original Maintenance Case No. 48 of 2017
under section 125 of Code of Criminal Procedure (herein after referred
to as 'Cr.PC' ) whereunder the learned Principal Judge, Family Court,
Koderma has directed the opposite party no.2 to pay the amount of
Rs.3,000/- per month to the petitioner-wife and Rs.1,500/- each to minor
children.
2. The brief facts leading to this criminal revision are that
maintenance petition under section 125 of Cr.PC was moved on behalf of
the petitioners Nilam Seth seeking maintenance herself and for her two
minor children petitioner nos.2 and 3 namely, Aryan Seth and Akanshi
Seth respectively with these averments that she was married with Ajay
Seth on 06.12.2010 according to Hindu rites and rituals and out of the said
wedlock she was blessed with two minor children who are now 8 years
and 11 years old.
2.1 The opposite party no.2 in influence of his parents began to
make demand of Rs.2 lacs and a motorcycle. Inability for the same was
shown by the petitioner, the panchayat was also held in which no
settlement was arrived and the petitioner has to file the case under section
498A of IPC which was registered at P.S. Case No. 1 of 2016. At the
stage of bail in that case it was settled out from court that Ajay Seth will
keep his wife alongwith two minor children in a rented house at Koderma;
but after living for some time on 18.04.2017 he left the very house leaving
the petitioner and two minor children. The opposite party has a house in
Jhumritelaiya City. He also earns Rs.40,000/- to Rs.45,000/- per month
from the sale of medicines and gets rent of Rs.36,000/- per month of the
three shops which are given on rent. In view of the above claimed the
maintenance amount of Rs.25,000/- for herself and two minor children.
3. On behalf of opposite party the reply of the show cause was
filed in which he denied the allegations made in the maintenance
application and stated that he never made any demand of the dowry and
tortured to the petitioner for the same. The parents of the opposite party
are too old ages. The petitioner is a labourer however he earns bread for
the family to make the both hands meet. The opposite party has no such
property as alleged in the maintenance petition. In view of the above
prayed to dismiss the maintenance application.
4. On behalf of petitioner in oral evidence examined PW1-
Nilam Seth, PW2- Jageshwar Ram. No documentary evidence was
adduced on behalf of petitioner.
5. On behalf of opposite party in oral evidence examined DW1-
Vinay Kumar Sinha, DW2- Sanjay Burnerjee, DW3- Gopal Kumar
Sonkar, DW4- Rohit Bhatiya, DW5- Ajay Seth and DW6- Vijay
Kumar Soni. On behalf of opposite party in documentary evidence filed,
the receipt of payment voucher of Purnima Talkies, Jhumri Telaiya,
Koderma in regard to the wages being given to him exhibit-Y dated
07.09.2021, exhibit-Y1 dated 14.09.2021, exhibit-Y2 dated 30.09.2021,
exhibit-Y3 dated 21.09.2021, exhibit-Y4 dated 06.03.2022, exhibit-Y5
dated 14.03.2022, exhibit-Y6 dated 18.03.2022, exhibit-Y7 dated
27.03.2022, exhibit-Y8 dated 31.03.2022 and exhibit-A temporary
appointment letter dated 27.08.2021.
6. The learned Principal Judge, Family Court, Koderma after
hearing the rival submission of parties passed the impugned judgment
dated 20.06.2022.
7. Aggrieved from the impugned judgment the instant criminal
revision has been preferred on behalf of the petitioner on the ground that
the impugned judgment passed by the learned court below is bad in the
eye of law. The learned lower court did not rely the evidence adduced on
behalf of the petitioner-wife in which she specifically stated that the
opposite party earns Rs.40,000/- to Rs.45,000/- per month as a Medical
Representative and he has also income out of the rents as he has given
three shops on rent. The receipts in regard to the wages which were
adduced on behalf of the opposite party are the fake indeed the opposite
party- husband is not the labourer as such the quantum of the maintenance
as awarded by the learned court below is not based on the proper
appreciation of the evidence and prayed to allow this criminal revision and
to set aside the impugned judgment and also prayed to enhance the
maintenance amount from the amount as awarded by the learned court
below.
8. I have heard the learned counsel for the parties and perused
the material on record. For disposal of this criminal revision following
point of determination is being framed:
(i) whether the quantum of the maintenance amount
awarded for the petitioner-wife and two minor children is
proportionate in view of the income of the opposite party- husband
and also his liabilities towards his family?
9. On this point of determination it would be pertinent to
reproduce the oral and documentary evidence adduced on behalf of the
parties.
9.1 PW1- Nilam Seth in her examination-in-chief says that her
husband is the whole-seller of the medicine. He earns Rs.45,000/- to
Rs.50,000/- per month. He also carries on general store. From which, he
has good income and the shops are also given on rent from which the
income is also arisen to the opposite party. Both the children Aryan Seth 8
years old and Akanshi Seth 11 years old are residing with her and she has
no other source of income to maintain herself and her minor children.
In cross-examination this witness says that she has no
documentary evidence in regard to the being whole-sale seller of the
medicine and carrying on the general store by the opposite party. Earlier
Ajay Seth had carried on business in the name and style of Ajay Pharma.
She does nothing and does not teach in any school.
9.2 PW2- Jogeshwar Ram is the father of petitioner Nilam Seth
and says that his son-in-law is a businessman. He is whole-seller of the
medicine, earns Rs.40,000/- to Rs.45,000/- per month. He also gets
Rs.15,000/- per month from the rent of his shop and also gets Rs.15,000/-
per month from the grocery shop. He has also agricultural land 1.5 acres.
In cross-examination this witness says he has not adduced any
documentary evidence in regard to the 1.5 acres agricultural land of
opposite party and also in regard to the shop being carried on by him and
rented shop as well.
10. On this point of determination on behalf of opposite party
examined.
10.1 DW-1 Vinay Kumar Sinha, this witness in his examination-
in-chief says earlier Ajay seth was carrying shop of the medicine now he is
helper of a electric mechanic and he gets Rs.250/- or Rs.300/- per day.
Ajay Seth has no agricultural land.
In cross-examination this witness says earlier Ajay Seth used
to sell the medicines. It is wrong to say that he runs the shop for cosmetic
items. It is also wrong to say that Ajay Seth also gets income from the
rented shop. It is wrong to say that the income of Ajay Seth is Rs.40,000/-
to Rs.50,000/- per month. This witness further says that Ajay Seth does
service in Purnima Talkies, he gets Rs.330/- per day. The appointment
letter issued on behalf of Purnima Talkies is in the signature of the
owner of Purnima Talkies namely, Pankaj Kumar Badani. He
identifies his signature marked exhibit-A. The photo copy of the
payment voucher dated 07.09.2021, 14.09.2021, 21.09.2021, 30.09.2021,
06.03.2022, 14.03.2022, 18.03.2022, 27.03.2022, 31.03.2022 marked
exhibit-Y to Y8 were issued by Purnima Talkies he identifies them.
This witness further says he is not aware in regard to the liabilities of Ajay
Seth. Earlier Ajay Seth was Medical Representative. It is wrong to say that
still he is Medical Representative.
10.2 DW-2 Sanjay Banerjee in his examination-in-chief says Ajay
Seth was helper. He gets Rs.250/- per day. He gets job 15-20 days in a
month. Ajay Seth has no landed property.
It is wrong to say that Ajay Seth has cosmetic shop and has
income of Rs. 40,000/- to Rs.50,000/-. It is wrong to say that Ajay Seth
has no rented income.
10.3 DW-3 Gopal Kumar Sonkar in his examination-in-chief says
that Ajay Seth is helper of electrician. He gets Rs.250/- per day. He has no
shop and no landed property.
In cross-examination this witness says that it is wrong to say
that there are three shops at Jhanda Chowk of Ajay Shop from which he
gets Rs.36,000/- per month.
10.4 DW-4 Rohit Bhatia in his examination-in-chief says that
Ajay Seth is helper of electrician and gets Rs.250/- per day. He has no
landed property or shop.
In cross-examination this witness says that he is not aware
whether there are the shops at Jhanda Chowk from which Ajay Seth gets
Rs.36,000/- per month from rent. It is wrong to say that Ajay Seth does
business of medicine and gets Rs.40,000/- to Rs.45,000/- per month.
10.5 DW-5 Ajay Seth in his examination-in-chief says that he is
helper of electrician and gets Rs.250/- per day. He gets job 15 to 20 days
in a month.
In cross-examination this witness says the shop in the name
and style of Ajay Pharma was never run by him. There is no three storied
house in Jhumritelaiya of him. It is wrong to say that he is whole-seller
or retailer of the medicine. It is wrong to say that he runs general
store. It is wrong to say that he gets Rs.36,000/- per month of the rent
of rented property and earns Rs.40,000/- to Rs.45,000/- per month.
This witness further in examination-in-chief on being recall says that he
gets Rs.330/- per days from Purnima Talkies, Jhumritelaiya. He gets
job 20 to 22 days. The landed property was in the name of his mother
in which the house is situated. The receipt issued by the Purnima
Talkies are being filed by him wherein he gets Rs.330/- per day. His
receipts are from 07.09.2021 to 21.04.2022. These payment vouchers
were filled up by the Manager of Purnima Talkies Vinay Kumar Sinha.
The owner of the same is Mr. Pankaj Kr. Badani. This witness in further
cross-examination says that Purnima Talkies is the private institution. It is
wrong to say that these receipts are forged.
10.6 DW-6 Vijay Kumar Soni in his examination-in-chief says
Ajay Seth does work in Purnima Talkies. He gets Rs.330/- per day. He has
no landed property. He has only house which is in name of his mother.
In cross-examination this witness says earlier Ajay Seth was
doing job of Medical Representative. He used to sell the medicine
from his very house.
11. From the perusal of the evidence on behalf of both the parties
adduced it is proved that earlier Ajay Seth was doing business of sale of
wholesale medicines as a Medical Representative. But there is no cogent
evidence that still he is doing job of Medical Representative.
12. Certainly the income of the opposite party is in particular
knowledge of opposite party and burden of proof also lies upon him to
prove in view of Section 106 of the Evidence Act. On behalf of the
opposite party in his reply of the show cause notice it has been averred that
he is labourer. He gets Rs.250/- per day and gets job 20 to 25 days in a
month oral. In testimony of all the witnesses adduced on behalf of the
opposite party proved that at present the opposite party is a helper of
electrician. Earlier he was getting Rs.250/- per day but at present he
says that he is getting Rs.330/- per day. The receipt issued by the
owner of the Purnima Talkies, Jhumritelaiya are verified by the
Manager Vinay Kumar Sinha-DW1 and these receipts are given of
more than 2 months or 3 months each respectively. Vinay Kumar
Sinha-DW1 has stated that these receipts were issued by the owner Mr.
Pankaj Kr. Badani.
13. So far as the income of the opposite party from the rented
property or agricultural land is concerned as averred in the pleadings by
the petitioner-wife and also deposed in her statement by PW1-Nilam Seth
before the learned Principal Judge, Family Court; the same was also
deposed by her father-PW2; but to that effect no documentary evidence
has been adduced; while on behalf of opposite party same fact is denied
in toto. On behalf of opposite party six witnesses were examined and all
the witnesses have stated that opposite party has no landed property
and no such property from which he gets the income of rent rather all
the six witnesses had deposed that he has income as a helper of an
electrician.
14. Learned Principal Judge, Family Court has assessed the
income of the opposite party Rs.15,000/- per month on the basis of the
guess-work. Admittedly the wife is doing nothing. The two minor
children are also residing with her. From the evidence it is also found
that the opposite party also maintains his old ages mother and father.
He has also liability to maintain them. In view of the income as assessed
by the learned Principal Judge, Family Court the maintenance amount was
awarded for the petitioner no.1-wife Rs.3,000/- per month and Rs.1,500/-
per month each for the two minor children.
15. In view of the above the maintenance awarded by the court
below appears to be proportionate in view of the income of the
opposite party and also his liabilities. As such the impugned judgment
passed by the learned court below needs no interference. Accordingly, this
criminal revision deserves to be dismissed.
16. The criminal revision petition is hereby dismissed and the
impugned order passed by the learned court below is affirmed.
17. Let the record of learned court below be sent back alongwith
copy of the judgment.
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
AFR
Dated: 01 .02.2024
RKM
