Jharkhand High Court
Amit Anand @ Amit Anand Barnwal vs The State Of Jharkhand on 8 April, 2025
Author: Sanjay Prasad
Bench: Sanjay Prasad
2025:JHHC:11037
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 148 of 2023
....
Amit Anand @ Amit Anand Barnwal, aged about 22 years, son of
Sanjay Kumar Barnwal, resident of Village-Madhopur, PO-
Basudeopur, PS-Kotwali, District- Munger (Bihar)
...... Petitioner
Versus
1. The State of Jharkhand
2. Shiwani Kumari Barnwal, wife of Amit Anand @ Amit Anand
Barnwal, resident of Village-Madhopur, PO- Basudeopur, PS-
Kotwali, District- Munger (Bihar)
At present residing at Village- Chirudih, PO & PS- Nawadih,
District- Bokaro ...... Opp. Parties
-----
PRESENT
HON'BLE MR. JUSTICE SANJAY PRASAD
-----
For the Petitioner : Mr. Manoj Kumar Sah, Advocate
For the State : Mr. Rajesh Kumar, A. P. P.
For the O. P. No. 2 : Mr. Kripa Shankar Nanda, Advocate
......
JUDGMENT
C.A.V. on 26.03.2025 Pronounced on 08/04/2025
This Criminal Revision No. 148 of 2023 has been filed
on behalf of the petitioner challenging the judgment dated
22.12.2022 passed by Sri Rajiv Ranjan learned Additional
Principal Judge, Additional Family Court, Bermo at Tenughat,
Bokaro in Original (Maintenance) Suit No. 78 of 2019 whereby
the petition under Section 125 of the Cr. P.C. filed by the wife-
opposite party no. 2 has been allowed and direction was given to
the petitioner to pay Rs. 10,000/- per month to the opposite party
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no. 2 towards her maintenance which is payable by 10th day of
each succeeding month from the date of filing of the case either
by way of Cash or Cheque/DD/ Online transaction.
2. The wife-opposite party no. 2 had filed O. M. Case No.
78 of 2019 against her husband-petitioner under Section 125 of
the Cr. P. C. for grant of maintenance in which the husband-
petitioner has appeared and had filed his show cause and after
hearing both the sides, the learned Court below has passed the
impugned order dated 22.12.2022 (it was to be mentioned as
Judgment instead of Order).
3. The case of the opposite party no. 2-wife, in brief, is
that the marriage between the petitioner and the opposite party
no. 2 was solemnized on 23.11.2017 as per the Hindu rites and
customs at Burnwal Sewa Sadan, Madhopur, Munger in presence
of relatives and friends of both the parties because the father of
the petitioner had not agreed to come to Village-Chirudih, PO &
PS- Nawadih, District- Bokaro. After that the wife-opposite party
no. 2 went to her matrimonial home and started living with her
husband and in-laws members and she lived peacefully for one
month and thereafter her husband i.e. the petitioner and her in-
laws members including Nanad and Nandoyee started torturing
her by illegally demanding dowry and subjected to physical and
mental torture for Rs. 3,00,000/- and a Bullet Motorcycle and
Laptop. It is stated that the parents of the wife-opposite party
no. 2 had given Rs. 4,00,000/- cash, four gold ring valued of Rs.
30,000/- and presented ear ring of gold valued Rs. 2,10,000/-,
Nathia worth Rs. 15,000/-, Mangtika of Rs. 15,000/- to her
daughter. However, her husband and his family members started
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torturing the opposite party no. 2-wife and even her father in-
law had snatched her mobile and ornaments and her father in-law
started teasing her by different methods and also tried to outrage
her modesty and demand of dowry. However, when the opposite
party no. 2 narrated the story of teasing to her mother in-law and
husband, then all the family members threatened to kill her. In
the meantime, the wife-opposite party no. 2 became pregnant and
when her husband and other in-laws members learnt about her
pregnancy, then they forcibly got administered her medicine for
miscarriage of child and due to which, she became seriously ill
and thereafter, her husband and her father in-law left her in her
Maike on 04.04.2018 and since then, she is in her Maike and is
living in Village- Chirudih, PS.-Nawadih. She also stated that
during her stay in her matrimonial home, her in-laws refused to
provide food, cloth and other requirements such as medicines,
shelter and necessary expenses etc. It is stated that she is a house
wife and has no source of income and not able to maintain
herself and her father is not in a position to maintain her.
It is further stated that her husband i.e. the petitioner is
working in Kolkata and who is getting salary of Rs. 30,000/- per
month and apart from this, her husband has got rental home and
from which he earns Rs. 5,000/- per month. Even her husband is
running a shoe shop in Mohalla Madhopur and from the said
shop, he earns Rs. 10,000/- per month. Apart from this her
husband and his friends have a partnership business of Computer
Institute and from which, he earns Rs. 10,000/- per month. Thus,
the income of her husband is not less than Rs. 55,000/- per
month and the wife-opposite party no. 2 has demanded
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maintenance amount since 04.04.2018 and on several occasion,
but her husband and his relative denied to maintain her and
hence, she has filed the present case for grant of maintenance of
Rs. 10,000/- per month.
4. The husband-petitioner had appeared and had also filed
show cause stating therein that the application filed by the
opposite party no. 2-wife is not maintainable and is fit to be
dismissed. It is admitted that the marriage between the petitioner
and the opposite party no. 2 was performed as per the Hindu rites
and customs on 23.11.2017 at Burnwal Sewa Sadan, Madhopur,
Munger in presence of relatives and villagers of both the sides.
However, he refuted the assertion of the wife-O. P. No. 2 that
the father of the petitioner had refused to come to Village-
Chirudih, rather there was no such place to welcome the Barati
and for their convenience, the father of the petitioner had offered
to come to Munger and where all the arrangements were made.
The petitioner has also denied for torturing the opposite party
no. 2 i.e. his wife mentally and physically for non-fulfilment of
demand of Rs. 3,00,000/- and one Bullet Motorcycle and
Laptop. He also denied to have taken any money or any articles
during marriage. The petitioner has also denied for giving any
threatening to his wife-opposite party no. 2. He also denied
regarding pregnancy of his wife-opposite party no. 2 as he has
never established physical relationship with his wife. Thus, the
allegation of abortion of child against his family members is
false and concocted. He is also not aware as to when the
applicant-O. P. No. 2 has given birth to a son or daughter and
therefore, his wife was never pregnant. The petitioner has further
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denied for doing any business of computer institute at Dhanbad
with his friend and stated that a person cannot work at four
places by doing business and for running the Institute. It is stated
that the petitioner is an unemployed person and earlier the
petitioner was working in Kolkata, but after marriage and due to
pressure of his wife, he left his job and is living at his house at
Madhopur, Munger as an unemployed person.
The petitioner has flatly denied for earning Rs. 5,000/-
from rent and for earning shop of shoe and sandal and he
claimed that the house of the petitioner is small one. The
petitioner has also filed a case under Section 9 of the Hindu
Marriage Act bearing Case No. 224 of 2018 before the learned
Principal Judge, Family Court, Munger and notice was sent to
the opposite party no. 2 by Speed Post and which has been
received by his wife i.e. opposite party no. 2 and in which she
has not appeared and hence ex-parte hearing was done. It is
further stated that his wife-opposite party no. 2 is M.Com Pass
and is doing online business of Online Burnwal Community and
Social Network and from which, she is earning Rs. 40,000/- to
Rs. 50,000/- per month and he can file online papers of her
business.
It is further stated that his wife i.e. opposite party no. 2
has got relationship with her villager Prashant Kumar Burnwal,
who is Manager in Indian Bank and his wife had informed him
that she got married with him only on the pressure of her parents
and her relatives and hence Maintenance Case may be rejected.
5. Heard learned counsel for the petitioner and learned
counsel for the State and learned counsel for the opposite party
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no. 2.
6. It is submitted by the learned Counsel for the petitioner
that the impugned 'Order' passed by the learned Court below is
illegal, arbitrary and not sustainable in the eye of law. It is
submitted that the learned Court below has failed to consider that
the petitioner is an unemployed as he had earlier resigned from
the service in the year 2018, which is evident from letter dated
01.04.2018 issued by Brajesh Kumar Verma, Managing Director,
BRAND ME HIGH, South 24 Parganash, Kolkata and which is
enclosed as Annexure-4 of this Criminal Revision Application. It
is submitted that the petitioner himself is dependent upon his
father and has no source of income and is not in a position to
give any maintenance amount. It is submitted that the father of
the petitioner is not in a position to maintain his wife. It is further
submitted that father of the petitioner had never teased or outrage
the modesty of his wife and allegation against his father leveled
by his wife is false and concocted. It is submitted that the
Reliving Letter dated 01.04.2018 issued by Braesh Kumar
Verma, Managing Director, BRAND ME HIGH, South 24
Parganash, Kolkata and which is enclosed as Annexure-4 of this
Criminal Revision Application, which shows that the petitioner
has already been relived from service on 01.04.2018 by his
Company i.e. BRAND ME HIGH, South 24 Parganash, Kolkata.
It is submitted that the petitioner was not allowed to cross-
examine the some witnesses of the opposite party no. 2 and he
was not allowed to lead his evidence and hence, the impugned
order passed by the learned Court below may be set aside and
this Criminal Revision Application may be allowed.
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7. On the other hand, learned counsel for the State has
submitted that the impugned 'order, passed by the learned Court
below is fit and proper and no interference is required by this
Court. It is submitted that respondent-O. P. No. 2 has fully
supported the case in her maintenance case and as such, no
illegality has been committed by the learned Court below by
granting maintenance to the opposite party no. 2 and hence, the
criminal revision application may be dismissed.
8. On the other hand, learned counsel for the opposite
party no. 2, after adopting the submission of the learned A.P.P.,
has further submitted that the impugned order passed by the
learned Court below is fit and proper and no interference is
required from this Court. It is submitted that opposite party no. 2
is the legally married wife of this petitioner, but the petitioner has
refused to maintain her. It is submitted that the petitioner and in-
laws members have tortured and ousted the opposite party no. 2
from her matrimonial home. It is submitted that only in order to
avoid payment of maintenance the petitioner has filed a case
under Section 9 of the Hindu Marriage Act bearing Case No. 224
of 2018 before the learned Principal Judge, Family Court,
Munger. It is submitted that the petitioner had appeared before
the learned Court below and has contested the case, but never
stated that he was relived from the company on 01.04.2018 and
this defence has taken for the first time before the High Court. It
is submitted that the petitioner is a Web Designer and he is an
Engineer and has completed Degree of B.Tech and he has
sufficient means to maintain himself and as such, no illegality has
been committed by the learned Court below by granting
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maintenance to the opposite party no. 2 and hence, the criminal
revision application may be dismissed.
9. Perused the scanned copies of the records received from
the Court of the learned Additional Principal Judge, Additional
Family Court, Bermo at Tenughat and considered the
submissions of both the sides.
10. During course of the argument before this court, it
transpires that the petitioner had filed Cr. M. P. No. 1458 of 2022
and Cr. M. P. No. 1316 of 2022 before this Court though it has
not been mentioned at the time of filing of this Criminal Revision
Application.
11. It further reveals from the impugned order 22.12.2022
passed by the learned Additional Principal Judge Additional
Family Court, Bermo at Tenughat, Bokaro that learned counsel
for the petitioner had refused to cross-examine the P.W.-3
namely Bhola Prasad Barnwal, i.e. father of the opposite party
no. 2 and P.W.-4 is Shiwani Kumari i.e. the wife- O.P. No. 2
herself on the ground that he had preferred Criminal Revision
Application before this High Court and he was not ready to pay
the witness cost as directed by the learned Court below and he
had denied to cross-examine both i.e. P.W.-3 i.e. Bhola Prasad
Barnwal, father of the opposite party no. 2 and P.W.-4
i.e. Shiwani Kumari who is the wife- O.P. No. 2 herself on the
ground that Criminal Revision had been filed before the High
Court of Jharkhand, Ranchi.
However, the filing of above Cr. M. P. No. 1458 of
2022 has not been stated before this High Court while filing this
instant Criminal Revision No. 148 of 2023 before this Court.
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12. It reveals from para-2 of the above Criminal Revision
Application i.e. Criminal Revision No. 148 of 2023 that the
petitioner has suppressed the fact of filing Criminal Revision
Application as he merely stated that he has not preferred any
Criminal Revision Application against the order dated
22.12.2022 passed by Sri Rajiv Ranjan, learned Additional
Principal Judge Additional Family Court, Bermo at Tenughat,
Bokaro passed in Original Maintenance Case No. 78 of 2019
before the High Court. Thus, the petitioner has not come with
clean hands before this Court.
13. Thus, the petitioner has also violated and suppressed the
fact of filing Cr. M. P. No. 1458 of 2022 and Cr. M. P. No. 1316
of 2022 before this Court or any matter is pending or disposed of
before this Court in para-2 of this Criminal Revision Application.
14. However, this Court in light of the submission of the
parties obtained the Web Copy of the Cr. M. P. No. 1316 of
2022, which reveals that it was dismissed vide order dated
02.08.2022 passed by the Co-ordinate Bench (Hon'ble Mr.
Justice Sanjay Kumar Dwivedi) of this Court and Cr. M. P. No.
1458 of 2022, which is pending before this Court.
15. The operative portion of the order dated 02.08.2022
passed in Cr. M. P. No. 1316 of 2022 is as follows:-
"Heard Mr. Manoj Kumar Sah, learned counsel for the
petitioner and Mr. Veervijay Pradhan, learned counsel for the
State.
This petition has been filed for quashing of order dated
03.03.2022 passed in OMC-78/2019 passed by the learned
Additional Principal Judge, Family Court, Bermo at Tenughat,
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pending in the Court of learned Additional Principal Judge,
Family Court, Bermo at Tenughat.
Learned counsel for the petitioner submits that divorce
petition has been filed by the petitioner and the petition under
section 125 Cr.P.C. filed by the O.P. No. 2 is not maintainable
inspite of that learned court has rejected the petition filed by
the petitioner.
Learned court has rightly rejected the petition filed by the
petitioner. Only case has been registered under section 125
Cr.P.C. and the petitioner has been called upon to file written
statement and pendency of the divorce petition is not a ground
for dismissing the petition filed under section 125 Cr.P.C. There
is no illegality in the impugned order. Accordingly, this petition
is dismissed."
16. Cr. M. P. No. 1458 of 2022 is still pending before this
Court. However, the operative portion of the order dated
03.07.2024 passed in Cr. M. P. No. 1458 of 2022 is as follows:-
"Heard the parties. Perusal of the record reveals that vide order
dated 12.04.2024, time was granted as the last chance and today
also learned counsel for the petitioner again prays for time.
Prayer for time is allowed subject to deposit of Rs.1,000/- by the
petitioner with the Jharkhand State Legal Services Authority
(JHALSA) within two weeks from the date of this order, failing
which, this Cr.M.P. shall stand dismissed without further
reference to the Bench. List this Cr.M.P. after six weeks in case
the petitioner files the proof of deposit of Rs.1,000/- by the
petitioner with the Jharkhand State Legal Services Authority
(JHALSA) within two weeks from the date of this order".
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17. It appears that learned Additional Principal Judge
Additional Family Court, Bermo at Tenughat, Bokaro has framed
following points for determination, which are as follows:-
" (i) Whether this petition is maintainable or not ?
(ii) Whether the petitioner is entitled to get Maintenance
from the O. P. as sought, if so, what should be the
quantum of Maintenance ?
(iii) What should be the date of payment of Maintenance
and also what should be the mode of payment ?
18. The learned Court below has decided point no. 1 in
favour of the opposite party no. 2 herein after considering the
evidence led on behalf of the opposite party no. 2-wife by
observing that the wife- opposite party no. 2 is living separately
from the petitioner -her husband and also the petitioner is not
looking after the wife-opposite party no. 2 and hence the
Maintenance Case is maintainable by deciding the point no. -I in
favour of the wife-opposite party no. 2.
The learned Trial Court has also determined point no. II
and III by observing that the opposite party no. 2 is the wife of
the petitioner and she is living separately from her parents, even
the petitioner-husband had not cross-examined both i.e. P.W.-3,
Bhola Prasad Barnwal, father of the opposite party no. 2 and
P.W.-4, Shiwani Kumari i.e. the wife- O.P. No. 2 and their
evidence remains un-rebutted and hence it cannot be said that the
wife is living separately without any reason and she is entitled to
get maintenance from her husband-the petitioner.
The Trial Court has further observed that though the
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husband-petitioner had stated in his show cause that he has
resigned from service, but no document regarding acceptance of
resignation had been filed by the husband-petitioner. There is no
rebuttal of evidence of the wife-opposite party no. 2 that monthly
salary of the petitioner was Rs. 30,000/- per month and thus, the
learned Court below has held that the wife-opposite party no. 2 is
entitled to maintenance under Section 125 of the Cr. P. C.
However, on the quantum of maintenance amount, the
learned Court below has given passing reference of the judgment
passed in the case of Chaturvuj Vs. Sita bai reported in (2008) 2
SCC 316 and in the case of Rajnesh Versus Neha and Another
reported in 2020 SCC Online SC 903 and has held that the wife is
entitled to maintenance of Rs. 10,000/- from the petitioner w.e.f.
from 15.03.2019 i.e from the date of filing of application under
Section 125 of the Cr. P. C.
19. In this background the evidence of the petitioner, who
has not examined himself or other witnesses before the learned
Court below and document filed by the petitioner before this
Court for the first time has to be seen with care and caution and
also evidence led down by the wife-O.P No.2 before the learned
Court below.
20. It transpires that four witnesses have been examined on
behalf of the wife-opposite party no. 2, who are as follows:-
(i) P.W.-1 is Kokil Chand Mahato,
(ii) P.W.-2 is Nand Kishore Verma,
(iii) P.W.-3 is Bhola Prasad Barnwal, father of the
opposite party no. 2 and
(iv) P.W.-4 is Shiwani Kumari i.e. the wife- O.P. No. 2
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herself.
21. However, no document has been marked as the Exhibit
on behalf of the wife-opposite party no. 2.
22. Neither any witnesses have been examined nor any
document was marked as the Exhibit on behalf of the petitioner.
23. Thereafter, the learned Court below has passed the
impugned order as mentioned above.
24. P.W.-1 is Kokil Chand Mahato, who has filed his
evidence on affidavit before the learned Additional Principal
Judge Additional Family Court on 03.12.2021 stating therein that
he is acquainted with both the sides and applicant- wife-
opposite party no. 2 was married with the petitioner on
23.11.2017 as per the Hindu rites and customs at Burnwal Sewa
Sadan, Madhopur, Munger because the father of the petitioner
had not agreed to come to Village-Chirudih, PS- Nawadih,
District- Bokaro. The wife-opposite party no. 2 lived peacefully
for one month in her matrimonial home, but thereafter her
husband i.e. the petitioner and her in-laws members including
Nanad started torturing her by illegally demanding dowry and
subjected her to physical and mental torture for Rs. 3,00,000/-
and a Bullet Motorcycle. He also stated that at the time of
marriage, the parents of the wife-opposite party no. 2 had given
Rs. 4,00,000/- cash, four gold ring and other gold jewellary items
to her daughter. However, her husband and in-laws member
started abusing her and even her father in-law had snatched her
mobile and Jewellary and her father in-law started teasing her
with bad intention and tried to outrage her modesty due to non-
fulfillment of demand of dowry. However, when the opposite
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party no. 2 narrated the story of teasing to her mother in-law and
husband, then they threatened to kill her. In the meantime, the
wife-opposite party no. 2 became pregnant and when her husband
and other in-laws members learnt about her pregnancy, then they
forcibly administered her medicine for miscarriage of child and
due to which, she became seriously ill and thereafter, on
04.04.2018 her husband and her father in-law left her in her
Maike and since then, she is living in her Maike of Village-
Chirudih, PS.-Nawadih and they took no interest in her treatment
and maintenance. Even during her stay in her matrimonial home,
even her husband and her in-laws members had refused to give
food, cloth and other necessary items. Thereafter a panchayati
was held, but her husband -petitioner did not appear before
panchayat. He stated that the applicant-opposite party no. 2 is a
house wife and has no source of income and not able to maintain
herself and no other family members is in a position to maintain
her. He further stated that her husband i.e. the petitioner is
working in Kolkata and is getting salary of Rs. 30,000/- per
month and apart from this, the husband of O.P No.2 has got
rental home and from which he earns Rs. 5,000/- per month.
Even her husband is running a shoe shop in Village- Madhopur
and from the shop, he earns Rs. 10,000/- per month. Apart from
this her husband and his friends have a partnership business of
computer institute and from which, he earns Rs. 10,000/- per
month. Thus, the income of her husband is not less than
Rs. 55,000/- per month and hence, wife-opposite party no. 2 is
entitled for maintenance of Rs. 10,000/- per month.
25. However, during cross-examination, he stated that the
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marriage between the petitioner and the opposite party no. 2 was
performed in the year 2017 and he had gone in their marriage at
Madhopur Basti, Munger. He had gone two times at Madhopur,
but he had not gone the place where the Amit resides. He further
stated that negotiation of marriage was held in Munger and he
had also gone there and there was negotiation/talk of giving Rs.
4,00,000/-, four golden ring. He further stated that Bhola Prasad
i.e the father of Shivani i.e. wife of the petitioner has a Ration
Shop and from which, he is earning Rs. 4,000/- to Rs. 5,000/- per
month and making expenses of five persons. Whereas father of
the petitioner -Amit Anand has got shoe shop. He also admitted
that assault upon Shivani i.e. wife and Demand of Dowry was not
made in his presence. He has stated that although the husband of
Shivani is an Engineer in Kolkata, but he is not aware of the
name of the Company and her husband has orally stated for
earning Rs. 30,000/- per month.
26. However, this Court refrains itself from giving any
finding on the merit of the evidence of P.W.-1, Kokil Chand
Mahato at this stage.
27. P.W.-2 is Nand Kishore Verma, who has also filed his
evidence on affidavit dated 03.12.2021 stating the same fact
in-verbatim as stated by P.W.-1, Kokil Chand Mahato during his
evidence and as such, the same is not being repeated for the sake
of repetition here.
However, during his cross-examination on 03.12.2021,
he admitted that he is coming to Tenughat Court since last fifteen
years and he has given evidence 3-4 times and he has given the
evidence in the cases of his village. He further stated that he had
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gone to Munger three to four times and Shivani i.e. the opposite
party no. 2 is sister in his relation in the village. He claimed to
have met Amit i.e. the petitioner twice and the petitioner-Amit is
running one institute and he is doing job in Kolkata. He admitted
that no panchayati was taken place in the Village. He further
stated that father of Shivani i.e. P.W.-3 is running grocery shop.
The applicant- Shivani is graduate and has remained in her
matrimonial home for one year, but she has got not issue. He
further stated that the wife-O. P. No. 2 is fully dependent upon
her father. He denied the suggestion that the petitioner wants to
keep his wife, but they do not want to send her matrimonial
home.
28. However, this Court refrains itself from giving any
finding on the merit of the evidence of P.W.-2, Nand Kishore
Verma at this stage.
29. P.W.-3, Bhola Prasad Barnwal is the father of the
opposite party no. 2 (i.e. wife of the petitioner) and he also filed
his evidence on affidavit dated 19.02.2022 in form of Heading of
Deposition stating therein that the applicant-wife is his daughter
and his daughter was married on 23.01.2012 as per the Hindu
rites and customs at Burnwal Sewa Sadan, Madhopur, Munger
because the father of the petitioner and the petitioner were not
willing to come to Village-Chirudih, PS- Nawadih, District-
Bokaro. After marriage, the applicant-opposite party no. 2 went
to her matrimonial home and lived peacefully for one month with
her in-laws members and thereafter her husband i.e. the petitioner
and her in-laws members including Nanad started torturing her
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by illegally demanding dowry and subjected to physical and
mental torture for Rs. 3,00,000/- and a Bullet Motorcycle. He
also stated that at time of marriage, he had given Rs. 4,00,000/-
cash, four gold ring and other jewellary, however, her husband
and his family members started abusing and torturing the
opposite party no. 2 and even her father in-law had
snatched her mobile and jewellary and her father in-law teased
her and tried to outrage her modesty for non-fulfillment of
demand of dowry with ill intention and for which the applicant -
wife had informed her mother in-law and husband, but they
threatened to kill her. In the meantime, the applicant-opposite
party no. 2 became pregnant and when her husband and other in-
laws members learnt about her pregnancy, then they forcibly got
administered her medicine for abortion and due to which, she
became seriously ill and thereafter, on 04.04.2018 her husband
and her father in-law brought back to her in her Maike (Chirudih)
and they had neither got treated nor taken any steps for her
maintenance. He further stated that after marriage, the applicant-
O.P no.2 and her husband also remained in Village Chirudih, PS-
Nawadih, District- Bokaro and the petitioner i.e. her husband also
demanded Rs. 3,00,000/-, Motorcycle and Laptop. Even the
petitioner and his family members had failed to provide proper
food, cloth and other necessary expenses to the applicant-
opposite party no. 2 and had not taken any steps for her
maintenance and the petitioner had also not attended the
panchayati. He also stated that the applicant -opposite party no. 2
has no source of income and she is unable to maintain herself and
he is also not in a position to maintain her whereas the petitioner
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is capable to maintain his wife. He further stated that the
petitioner i.e. the husband of the opposite party no. 2, is doing job
in Kolkata and is earning Rs. 30,000/- per month and apart from
this, the petitioner has got house in his village Madhopur and
from which he earns Rs. 5,000/- per month and the petitioner is
also running a shoe shop in Village Madhopur and from which
he earns Rs. 10,000/- per month. Apart from this, the petitoner
and his friend have a partnership business of computer institute
and from which, he earns Rs. 10,000/- per month. Thus, the
petitioner is having income of atleast Rs. 55,000/- per month. He
further stated that the applicant-wife is living in his house since
04.04.2018 and the petitioner and his family members had
refused to maintain her and hence, the applicant-opposite party
no. 2 may be given Rs. 10,000/- per month for her maintenance
and for other necessary expenses.
30. However, P.W.-3, Bhola Prasad Barnwal was not cross-
examined by the learned counsel appearing on behalf of the
petitioner in the Court of learned Additional Principal Judge
Additional Family Court, as the learned counsel appearing on
behalf of the petitioner-husband had not agreed to pay the
witness cost and has stated that the petitioner-husband has filed
Revision before the High Court of Jharkhand and thus, this
witness i.e. PW-3 was discharged without cross-examination by
the learned Additional Principal Judge Additional Family Court,
Bermo at Tenughat on 23.04.2022.
31. However, this Court refrains itself from giving any
finding on the merit of the evidence of P.W.-3, Bhola Prasad
Barnwal at this stage.
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32. Surprisingly in the garb of filing revision before this
High Court, the learned counsel for the petitioner had refused to
cross-examine the P.W.-3, Bhola Prasad Barnwal and thus,
P.W.-3, Bhola Prasad Barnwal was discharged on 23.04.2022
without cross-examination due to refusal of cross-examination on
behalf of the petitioner and his counsel was not agreed to pay
witness cost.
33. P.W.-4 is Shiwani Kumari i.e. the wife- O.P. No. 2
herself and she has filed her evidence also on an affidavit dated
19.02.2022 in form of Heading of Deposition stating therein that
she was married with the petitioner- Amit Anand @ Amit Anand
Burnbal on 23.11.2017 as per the Hindu rites and customs at
Burnwal Sewa Sadan, Madhopur, PS- Kotwali, District- Munger
(Bihar) because the father of the petitioner and the petitioner had
not agreed to come to Village-Chirudih, PS- Nawadih, District-
Bokaro (Jharkhand). After marriage, she went to her matrimonial
home and started living with her husband and in-laws members
and she lived peacefully for one month in her matrimonial home
and thereafter her husband i.e. the petitioner and her in-laws
members including Nanad started torturing her by illegally
demanding dowry and subjected to physical and mental torture
for Rs. 3,00,000/- and a Bullet Motorcycle and Laptop. She
further stated that her parents had given Rs. 4,00,000/- cash, four
gold ring and other golden jewellary to her husband and her
daughter, which is worth of Rs. 2,81,000/-. However, her
husband and in-laws members used to assault and abused her
every day and even her father in-law had snatched her mobile
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and jewellery and her father in-law teased her with ill intention
and tried to outrage her modesty due to non-fulfilment of demand
of dowry. However, when she narrated the story of teasing to her
mother in-law and husband, then they threatened to kill her. In
the meantime, she became pregnant and when her husband and
other in-laws members learnt about her pregnancy, then they
forcibly got administered her medicine to terminate her
pregnancy and due to which, she became seriously ill and
thereafter, her husband and her father in-law had left her in her
Maike on 04.04.2018 and they neither got treated her nor
considered for her maintenance. She further stated that after
marriage, her husband and her in-laws members remained in
Village- Chirudih, PS- Nawadih, District-Bokaro and her
husband and her in-laws members further demanded
Rs. 3,00,000/-, one Motorcycle and one Laptop. Finally, she was
ousted her from her matrimonial home in the year 2018 and her
in-laws members refused to provide food, cloth and other
requirements such as medicines, shelter and necessary expenses
etc., then she called for panchayati, but they did not appear in
Panchayati. She is a household lady and has no source of income
and she is unable to maintain herself and her family members is
also not in a position to maintain her.
34. However, her husband i.e. the petitioner is working in
Kolkata and who is getting salary of Rs. 30,000/- per month and
apart from this, her husband has got rental home and from which
he earns Rs. 5,000/- per month. Even her husband is running a
shoe shop in Village Madhopur and from the shop, he earns Rs.
10,000/- per month. Apart from this her husband and his friend
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have a partnership business of Computer Institute and from
which, he earns Rs. 10,000/- per month. Thus, the income of her
husband is not less than Rs. 55,000/- per month.
She claimed to have enclosed the photocopy of the same
before the learned Court below during her evidence, but no such
documents have been marked as the Exhibits by the learned
Court below. She further stated that she is residing at her parental
home since 04.04.2018. She has refuted the allegations of the
petitioner and hence she may be given Rs. 10,000/- per month as
maintenance.
35. However, P.W.-4, Shiwani Kumari was also not cross-
examined by the learned counsel appearing on behalf of the
petitioner in the Court of learned Additional Principal Judge
Additional Family Court, Bermo at Tenughat as the learned
counsel appearing on behalf of the petitioner-husband had not
agreed to pay the witness cost and stated that the petitioner-
husband has filed Revision Application before the High Court of
Jharkhand and thus, this witness i.e. P.W.-4 was discharged
without cross-examination by the learned Additional Principal
Judge Additional Family Court, Bermo at Tenughat on
23.04.2022.
Thus, evidence of P.W.-4, Shiwani Kumari remains un-
rebutted and un-controverted.
36. However, this Court refrains itself from giving any
finding on the merit of the evidence of P.W.-4, Shiwani Kumari
at this stage.
37. However evidence of P.W.-4at Para-9 reveals that she
had also filed certain documents, but the same were not marked
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by the learned Court below.
38. So far as the documentary evidence of the petitioner is
concerned, it would appear that the petitioner had filed his show
cause before the learned Additional Principal Judge, Additional
Family Court, Bermo at Tenughat, Bokaro on 14.12.2020 and
copy was attached by the learned counsel for the petitioner by
making endorsement "Applicant's Lawyer not found". However,
filing of show cause is not incorporated in the order sheet as it
was the period of COVID-2019 Pandemic and as such, there
might be possibility that show cause dated 14.12.2020 filed by
the husband-petitioner could not be marked in the order sheet or
on 15.01.2021and on 12.02.2021 and also on subsequent dates
till 13.08.2021 and the learned Court below on 13.08.2021 had
observed that the case is fixed on 18.09.2021 for filing show
cause by the petitioner.
39. It reveals from the order sheet of the learned Court
below that vide order dated 06.12.2019, when both the both the
parties had appeared and the matter was referred to Mediation
Centre, Tenughat by fixing the date on 20.12.2019 and the case
remained pending on 20.12.2019 and 10.01.2020, 14.02.2020,
11.12.2020, 15.01.2021, 12.02.2021, 05.03.2021, 06.03.2021,
09.04.2021, 01.05.2021, 11.06.2021, 17.07.2021 and 13.08.2021
respectively for awaiting mediation report and however, order
sheet 13.08.2021 reveals that the mediation report was received
and it was observed by the learned Court below that mediation
remained unsettled and the case was fixed on 18.09.2021 for
filing show cause on behalf of the petitioner and also on
08.10.2021 for filing show cause by the petitioner.
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40. On 03.12.2021 without mentioning the fact of filing
show cause or earlier filing show cause by the petitioner, two
witnesses namely P.W.-1, Kokil Chand Mahato and P.W.-2,
Nand Kishore Verma were produced and their evidence were
taken and who were examined and cross-examined and
discharged.
41. However, on 03.12.2021, the learned Court below
noticed that show cause has already been filed by the husband-
petitioner and available on record and thereafter P.W.-1, Kokil
Chand Mahato and P.W.-2, Nand Kishore Verma were examined
and fully cross-examined and discharged and the case was fixed
on 07.01.2022 for further evidence of the applicant-wife-opposite
party no. 2.
42. Thereafter it was posted on 12.01.2022. However, in the
meantime, an application was filed on behalf of the petitioner to
expunge the evidence of the witnesses on the ground of false
legal affidavit. Thereafter vide order dated 09.02.2022, the
learned Court below directed the applicant-wife-opposite party
no. 2 to file her show cause. Even on 19.02.2022, evidence of
P.W.-3, Bhola Prasad Barnwal and P.W.-4, Shiwani Kumari
were filed on an affidavit. However, the evidence was deferred.
43. It reveals that thereafter vide order dated 03.03.2022,
the learned Court below had rejected the petition filed on behalf
of the petitioner for expunging the evidence of P.W.-1, Kokil
Chand Mahato and P.W.-2 i.e. Nand Kishore Verma on the
ground that the opposite party i.e. the petitioner-husband has
fully cross-examined the said witnesses.
44. It further reveals that vide the same order dated
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03.03.2022, the learned Court below has rejected another petition
dated 03.12.2021 filed by the husband-petitioner to the effect that
he has filed one Divorce Case bearing Matrimonial Case No. 93
of 2020 in light of judgment rendered by the Hon'ble Supreme
Court in AIR 2020 SC 952 and also the learned Court below has
observed that judgment of the said case is not applicable in the
present case as both the proceedings are different and even
divorcee wife is entitled for maintenance.
Thereafter the matter was posted on 15.03.2022 and
further it was posted on 05.04.2022.
45. It further reveals from the order sheet dated 05.04.2022
that the learned Additional Principal Judge, Additional Family
Court, Bermo at Tenughat, Bokaro that the husband of the
petitioner had filed an affidavit with regard to his income and on
that day, the wife-opposite party no. 2 had produced again two
evidences i.e. P.W.-3, Bhola Prasad Barnwal and P.W.-4 is
Shiwani Kumari.
However, on 05.04.2022 in light of the application filed
by the husband- petitioner to move before this Court by filing
Criminal Revision and has prayed for time and filed fresh
vakalatnma on behalf of the petitioner. Hence, the Court had
deferred the evidence of P.W.-3, Bhola Prasad Barnwal and
P.W.-4, Shiwani Kumari till 23.04.2022 by imposing cost of Rs.
500/- per witness as witness cost.
46. It further reveals that on 23.04.2022, both i.e. P.W.-3,
Bhola Prasad Barnwal and P.W.-4 is Shiwani Kumari were
produced for the evidence, but again time petition was filed by
the learned counsel for the petitioner-husband that they had
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preferred Cr. M. P. No. 1316 of 2022 before the High Court of
Jharkhand and has prayed for time. However, learned Court
below has rejected time petition on the ground that the learned
counsel for the petitioner-husband had not agreed to pay witness
cost i.e. Rs. 1,000/- to the witnesses for further cross-examination
and there is no stay order passed by the High Court and as such,
the learned Court below had discharged the P.W.-3, Bhola Prasad
Barnwal and P.W.-4 namely Shiwani Kumari without cross-
examination and the fixed the case for evidence of the applicant
wife-opposite party no. 2 on 18.05.2022 and also on 25.05.2022.
47. However, on 25.05.2022, the applicant-wife-opposite
party no. 2 was closed on her request and the case was posted on
14.06.2022 for evidence of the husband-petitioner. However, on
14.06.2022, 05.07.2022, 25.07.2022, 12.08.2022 respectively, no
witnesses was produced by the husband-petitioner before the
learned Court below and the learned Court below has also
observed on 12.08.2022 that Cr. M. P. No. 1316 of 2022 has
been dismissed by the Jharkhand High Court.
48. Thereafter the matter was posted on 23.08.2022 and
they had prayed for long time of one month on the ground of
possibility of compromise and on their request, the case was
posted on 27.09.2022 for evidence of the husband-petitioner and
on the ground of compromise. Even on 27.09.2022, one another
Petition was filed by the petitioner to cross-examine P.W.-3,
Bhola Prasad Barnwal and P.W.-4, Shiwani Kumari, but the said
petition was not pressed and it was posted on 16.11.2022.
However, on 16.11.2022, the case was adjourned on 30.11.2022
for the evidence of the husband-petitioner.
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49. However, vide order dated 16.11.2022, the learned
Court below did not entertain the Petition for interim
maintenance filed by the opposite party no. 2-wife.
50. It further reveals on 30.11.2022, the petitioner had
appeared in the learned Court below by filing another
Vakalatnama through another counsel and again filed a Petition
for examination of P.W.-3, Bhola Prasad Barnwal and P.W.-4
Shiwani Kumari. However, the learned Court below had rejected
the said petition for examination of P.W.-3, Bhola Prasad
Barnwal and P.W.-4 is Shiwani Kumari.
51. The learned Court below vide order dated 30.11.2022
had also rejected the said Petition on the ground that till date the
petitioner had neither produced any evidence nor they had filed
Time Petition. The learned Court below has also observed that
even they had preferred Cr. M. P. No. 1316 of 2022, which was
dismissed vide order dated 02.08.2022 by the Jharkhand High
Court.
52. It further reveals from the order sheet dated 13.12.2022,
that a Petition was filed under Section 311 of Cr.P.C. alongwith
statement of evidence of the witness. However, vide order dated
13.12.2022 the learned Court below has rejected the said Petition
filed by the petitioner and heard arguments of both the sides and
posted the case for 'Order' on 22.12.2022 and thereafter, this
impugned Order has been passed.
53. It reveals from the entire scanned copies of the record
from Additional Principal Judge, Additional Family Court that
the Petition filed under Section 311 Cr. P. C. and evidence filed
by the petitioner are not on record and it had not been sent before
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this Court by the office of the learned Additional Principal Judge
Additional Family Court.
54. It appears that office of the learned Additional Principal
Judge, Additional Family Court, Bermo at Tenughat, Bokaro is
highly negligent for not sending the said Petition dated
30.11.2022 filed under Section 311 of the Cr. P. C. by the
petitioner and the copy of the deposition of witness filed on
behalf of the petitioner-Amit Anand @ Amit Anand Barnwal on
13.12.2022. Apart from this office of the learned Court below has
not placed the documents filed by the applicant-wife-opposite
party no. 2 during her evidence on 19.02.2022 while examined as
P.W.-4.
55. It appears that the photocopies of documents as stated
by P.W.-4, Shiwani Kumari at Para-9 of her deposition, have
neither been marked before the learned Court below nor sent
before this Court. This shows clear negligence on the part of the
Office as well as the Presiding Officer i.e. learned Additional
Principal Judge, Additional Family Court, Bermo at Tenughat,
Bokaro, which is not appreciated by this Court.
Thus, the PO learned Additional Principal Judge,
Additional Family Court, Bermo at Tenughat, Bokaro/or his
successor Court and his office should remain cautious in future
while sending the scanned copies of entire documents before this
Court instead of some documents as indicated above.
56. Even Petition filed by the petitioner for recalling the
evidence of P.W.-3, Bhola Prasad Barnwal and P.W.-4 is
Shiwani Kumari has not been sent before this Court.
Therefore, it is evident that the petitioner has not been
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provided sufficient opportunity by the learned Court below to
examine P.W.-3, Bhola Prasad Barnwal and P.W.-4 Shiwani
Kumari on recall.
57. However, at the same time, the petitioner has also
lingered the matter for long time from 14.06.2022 till 16.11.2022.
58. It is well settled from the judgment rendered by the
Hon'ble Supreme Court in the case of Rajneesh Vs. Neha Arora
reported in 2021 (2) SCC 324 that even if wife is working and is
earning some amount, the husband is bound to pay the amount of
maintenance.
59. It has been held in the case of Sunita Kachwaha and
Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para
7, 8 and 10 as follows:-
"Para-7:- Inability to maintain herself is the pre-condition for
grant of maintenance to the wife. The wife must positively aver
and prove that she is unable to maintain herself, in addition to the
fact that her husband has sufficient means to maintain her and that
he has neglected to maintain her. In her evidence, the appellant-
wife has stated that only due to help of her retired parents and
brothers, she is able to maintain herself and her daughters. Where
the wife states that she has great hardships in maintaining herself
and the daughters, while her husband's economic condition is
quite good, the wife would be entitled to maintenance.
Para-8:- The learned counsel for the respondent submitted that the
appellant-wife is well qualified, having post graduate degree in
Geography and working as a teacher in Jabalpur and also working
in Health Department. Therefore, she has income of her own and
needs no financial support from respondent. In our considered
view, merely because the appellant-wife is a qualified post
graduate, it would not be sufficient to hold that she is in a position
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to maintain herself. Insofar as her employment as a teacher in
Jabalpur, nothing was placed on record before the Family Court or
in the High Court to prove her employment and her earnings. In
any event, merely because the wife was earning something, it
would not be a ground to reject her claim for maintenance.
Para-10:-The impugned order of the High Court dated 26.06.2008
passed in Criminal Revision No. 2303/2007 is set aside and this
appeal is allowed. The respondent is directed to pay the
maintenance of Rs.3,000/- per month to the appellant-wife as
ordered by the Family Court and also pay the arrears of
maintenance payable to the appellant-wife within the period of
eight weeks."
60. It has been held in Kalyan Dey Chowdhury Vs Rita Dey
Chowdhury Nee Nandy reported in 2017 (14) SCC 200 at paragraph
15, as follows:-
"Para 15:- The review petition under Order 47 Rule 1 CPC came
to be filed by the respondent wife pursuant to the liberty granted
by this Court when the earlier order dated 2-2-20152 awarding a
maintenance of Rs 16,000 to the respondent wife as well as to her
minor son was under challenge before this Court. As pointed out
by the High Court, in February 2015, the appellant husband was
getting a net salary of Rs 63,842 after deduction of Rs 24,000 on
account of GPF and Rs 12,000 towards income tax. In February
2016, the net salary of the appellant is stated to be Rs 95.527.
Following Kulbhushan Kumar v. Raj Kumari, in this case, it was
held that 25% of the husband's net salary would be just and
proper to be awarded as maintenance to the respondent wife. The
amount of permanent alimony awarded to the wife must be
befitting the status of the parties and the capacity of the spouse to
pay maintenance. Maintenance is always dependent on the factual
situation of the case and the court would be justified in moulding
the claim for maintenance passed on various factors. Since in
February 2016, the net salary of the husband was Rs 95,000 per
month, the High Court was justified in enhancing the maintenance
amount. However, since the appellant has also got married second
time and has a child from the second marriage, in the interest of
justice, we think it proper to reduce the amount of maintenance of
Rs 23.000 to Rs 20.000 per month as maintenance to the
respondent wife and son.
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61. It has been held in the case of Dr. Swapan Kumar
Banerjee Vs. State of West Bengal and Another reported in 2020 (19)
SCC 342, that even a wife who has been divorced on ground of
desertion is entitled to claimed maintenance and it has been held at
para 5 and 7 which are as follows:-
"Para 5:- Thereafter, in Rohtash Singh v. Ramendri this Court
took a similar view: (SCCP 184, para 11)
11. The learned counsel for the petitioner then submitted that
once a decree for divorce was passed against the respondent
and marital relations between the petitioner and the respondent
came to an end, the mutual rights. Duties and obligations
should also come to an end. He pleaded that in this situation,
the obligation of the petitioner to maintain a woman with
whom all relations came to an end should also be treated to
have come to an end. This plea, as we have already indicated
above, cannot be accepted as a woman has two distinct rights
for maintenance. As a wife, she is entitled to maintenance
unless she suffers from any of the disabilities indicated in
Section 125(4). In another capacity, namely, as a divorced
woman, she is again entitled to claim maintenance from the
person of whom she was once the wife. A woman after divorce
becomes a destitute. If she cannot maintain herself or remains
unmarried, the man who was once her husband continues to be
under a statutory duty and obligation to provide maintenance
to her."
"Para 7:- No doubt, as urged by Mr Debal Banerjee. Explanation
II to Section 125 9 CrPC by deeming fiction includes a divorced
woman to be a wife and, therefore, a woman who has been
divorced by her husband can still claim maintenance under
Section 125 CrPC. The question is how we should read the
provisions of sub-section (4) in this regard, especially when we
deal with those women, against whom a decree for divorce has
been obtained on the ground that they have deserted their
husband. Once the relationship of marriage comes to an end, the
woman obviously is not under any obligation to live with her
former husband. The deeming fiction of the divorced wife being
treated as a wife can only be read for the limited purpose for
grant of maintenance and the deeming fiction cannot be stretched
to the illogical extent that the divorced wife is under a
compulsion to live with the ex-husband. The husband cannot
urge that he can divorce his wife on the ground that she has
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deserted him and then deny maintenance which should otherwise
be payable to her on the ground that event after divorce she is not
willing to live with him. Therefore, we find no merit in the
contention of Mr Debal Banerjee."
62. It has been held in the case of Rajneesh Vs. Neha and
Another reported in 2021 (2) SCC 324 at Para-77, 78, 80 and 113,
which are as follows:-
"Para-77:- The objective of granting interim/permanent alimony
is to ensure that the dependent spouse is not reduced to destitution
or vagrancy on account of the failure of the marriage, and not as a
punishment to the other spouse. There is no straitjacket formula
for fixing the quantum of maintenance to be awarded.
Para-78:- The factors which would weigh with the court inter alia
are the status of the parties; reasonable needs of the wife and
dependent children; whether the applicant is educated and
professionally qualified; whether the applicant has any
independent source of income; whether the income is sufficient to
enable her to maintain the same standard of living as she was
accustomed to in her matrimonial home; whether the applicant
was employed prior to her marriage; whether she was working
during the subsistence of the marriage; whether the wife was
required to sacrifice her employment opportunities for nurturing
the family, child rearing, and looking after adult members of the
family; reasonable costs of litigation for a non-working wife. [
Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997)
7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar,
(2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]
Para-80:- On the other hand, the financial capacity of the
husband, his actual income, reasonable expenses for his own
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maintenance, and dependent family members whom he is obliged
to maintain under the law, liabilities if any, would be required to
be taken into consideration, to arrive at the appropriate quantum
of maintenance to be paid. The court must have due regard to the
standard of living of the husband, as well as the spiralling
inflation rates and high costs of living. The plea of the husband
that he does not possess any source of income ipso facto does not
absolve him of his moral duty to maintain his wife if he is able-
bodied and has educational qualifications. [Reema Salkan v.
Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ)
596 : (2019) 4 SCC (Cri) 339]
Para-113:- It has therefore become necessary to issue directions
to bring about uniformity and consistency in the orders passed by
all courts, by directing that maintenance be awarded from the date
on which the application was made before the court concerned.
The right to claim maintenance must date back to the date of
filing the application, since the period during which the
maintenance proceedings remained pending is not within the
control of the applicant."
63. It has been held in the case of Reema Salkan Versus Sumer
Singh Salkan reported in 2019 (12) SCC 303 at Para-13 and 15, which
are as follows:-
"Para-13:- Be that as it may, the High Court took into account all
the relevant aspects and justly rejected the plea of the respondent
about inability to pay maintenance amount to the appellant on the
finding that he was well educated and an able-bodied person.
Therefore, it was not open to the respondent to extricate from his
liability to maintain his wife. It would be apposite to advert to the
relevant portion of the impugned judgment which reads thus :
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(Reema Salkan case [Reema Salkan v. Sumer Singh Salkan, 2018
SCC OnLine Del 9380 : (2018) 250 DLT 16] , SCC OnLine Del
paras 80-84)
"80. The respondent during the cross-examination has admitted
that he too is BCom, MA (Eco) and MBA from Kentucky
University, USA; the respondent is a Canadian citizen working
with Sprint Canada and is earning Canadian $(CAD) 29,306.59 as
net annual salary. However, he has claimed that he has resigned
from Sprint Canada on 23-11-2010 and the same has been
accepted on 27-11-2010 and the respondent since then is
unemployed and has got no source of income to maintain himself
and his family.
81. In the instant case, the petitioner has filed the case under
Section 125 CrPC, 1973 for grant of maintenance as she does not
know any skill and specialised work to earn her livelihood i.e. in
Para 26 of maintenance petition against her husband. However,
the respondent husband who is well educated and comes from
extremely respectable family simply denies the same. The
respondent husband in his written statement does not plead that he
is not an able-bodied person nor he is able to prove sufficient
earning or income of the petitioner.
82. It is an admitted fact emerging on record that both the parties
got married as per Hindu rites and customs on 24-3-2002 and
since then the petitioner was living with her parents from 10-8-
2002 onwards, and the parents are under no legal obligation to
maintain a married daughter whose husband is living in Canada
and having Canadian citizenship. The plea of the respondent that
he does not have any source of income and he could not maintain
the wife is no answer as he is mature and an able-bodied person
having good health and physique and he can earn enough on the
basis of him being able-bodied to meet the expenses of his wife. In
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this context, the observation made in Chander Parkash v. Shila
Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 :
AIR 1968 Del 174] by this Court is relevant and reproduced as
under : (SCC OnLine Del para 7)
'7. ... an able-bodied young man has to be presumed to be
capable of earning sufficient money so as to be able reasonably to
maintain his wife and child and he cannot be heard to say that he
is not in position to earn enough to be able to maintain them
according to the family standard. It is for such able-bodied person
to show to the Court cogent grounds for holding that he is unable,
for reasons beyond his control, to earn enough to discharge his
legal obligation of maintaining his wife and child.'
83. The husband being an able-bodied person is duty-bound to
maintain his wife who is unable to maintain herself under the
personal law arising out of the marital status and is not under
contractual obligation. The following observation of the Apex
Court in Bhuwan Mohan Singh v. Meena [Bhuwan Mohan
Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC (Civ) 321 :
(2015) 4 SCC (Cri) 200 : AIR 2014 SC 2875] , is relevant : (SCC
p. 357, para 2)
'2. Be it ingeminated that Section 125 of the Code of Criminal
Procedure (for short "the Code") was conceived to ameliorate the
agony, anguish, financial suffering of a woman who left her
matrimonial home for the reasons provided in the provision so
that some suitable arrangements can be made by the court and she
can sustain herself and also her children if they are with her. The
concept of sustenance does not necessarily mean to lead the life of
an animal, feel like an unperson to be thrown away from grace
and roam for her basic maintenance somewhere else. She is
entitled in law to lead a life in the similar manner as she would
have lived in the house of her husband. That is where the status
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and strata come into play, and that is where the obligations of the
husband, in case of a wife, become a prominent one. In a
proceeding of this nature, the husband cannot take subterfuges to
deprive her of the benefit of living with dignity. Regard being had
to the solemn pledge at the time of marriage and also in
consonance with the statutory law that governs the field, it is the
obligation of the husband to see that the wife does not become a
destitute, a beggar. A situation is not to be maladroitly created
whereunder she is compelled to resign to her fate and think of life
"dust unto dust". It is totally impermissible. In fact, it is the
sacrosanct duty to render the financial support even if the
husband is required to earn money with physical labour, if he is
able-bodied. There is no escape route unless there is an order
from the court that the wife is not entitled to get maintenance from
the husband on any legally permissible grounds.'
84. The respondent's mere plea that he does not possess any
source of income ipso facto does not absolve him of his moral
duty to maintain his wife in presence of good physique along with
educational qualification."
(emphasis in original)
Para-15:- The only question is : whether the quantum of
maintenance amount determined by the High Court is just and
proper. The discussion in respect of this question can be traced
only to para 85 of the impugned judgment which reads thus :
(Reema Salkan case [Reema Salkan v. Sumer Singh Salkan, 2018
SCC OnLine Del 9380 : (2018) 250 DLT 16] , SCC OnLine Del)
"85. So far the quantum of maintenance is concerned, nothing
consistent is emerging on record to show the specific amount
which is being earned by the respondent after 2010, however, the
husband is legally bound to maintain his wife as per the status of a
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respectable family to which he belongs. The husband being able-
bodied along with high qualification BCom, MA (Eco) and MBA
from Kentucky University, USA could earn at least minimum of
Rs 18,332 as per the current minimum wage in Delhi. Therefore,
the petitioner being wife is entitled to Rs 9000 per month from 9-
12-2010 onwards till further orders."
64. It has been held in the case of Kaushalya Versus Mukesh
Jain reported in 2020 (17) SCC 822 at Para-9 to 14, which are as
follows:-
"Para-9:- Having regard to all these facts and circumstances and
bearing in mind the fact that the application for maintenance remained
pending for nearly a decade, we are of the view that there would be a
serious miscarriage of justice if an order of remand simpliciter is
passed without providing any financial security to the appellant. Even
the application for setting aside the ex parte decree for divorce has
remained pending unfortunately for a decade. This state of affairs has
to be rectified at the earliest since it is symptomatic of the breakdown
of the administration of justice in family matters.
Para-10:- Ms Vrinda Grover, learned counsel submitted that in the
course of remanded proceedings, the respondent would wish to lead
evidence in regard to the financial position of the appellant.
Undoubtedly, the parties are at liberty to advance their specific cases by
producing such additional evidence they seek to produce in pursuance
of the order of the High Court.
Para-11:- We are inclined to affirm the order of remand for the reason
that the difficulty which the learned Judge of the Family Court faced in
making a fair assessment of the income of the respondent was noticed
by the High Court. During the course of hearing, we have been taken
through the relevant documents and on an overall consideration of the
matter, we are of the view that it will be appropriate to affirm the order
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of remand. At the same time, doing so without a protective ad interim
direction for the grant of maintenance would result in a failure of
justice.
Para-12: Hence, we pass the following order:
Para-12.1:- The order of remand passed by the High Court on 20-11-
2018 [Mukesh Jain v. Kaushalya, 2018 SCC OnLine Mad 13566] shall
stand confirmed.
Para-12.2:- The First Additional Family Court, Chennai is directed to
dispose of the proceedings of remand within a period of six months
from the date of receipt of a certified copy of this order after allowing
the parties an opportunity to adduce such further evidence as they may
desire within a period of two months from the date of receipt of a
certified copy of this order.
Para-12.3:- In the meantime, the order passed by the trial court for the
grant of maintenance shall operate as an ad interim direction and the
arrears which are payable to the appellant shall be paid over in six
equal monthly instalments, the first of which shall be payable on or
before 14-8-2019. The rest of the instalments shall be payable on or
before ninth day of every succeeding month. Any payment which is
made to the appellant in pursuance of above directions shall abide by
the final directions of the Family Court in regard to the payment of
maintenance.
Para-12.4:- In the event that there is any failure on the part of the
respondent to comply with the order for deposit of arrears and month to
month instalments, it will be open to the appellant to apply before the
Family Court to get the defence of the respondent struck off.
Para-13:- The parties have agreed, in the meantime, to explore the
possibility of a mediated settlement and have agreed to the nomination
of Mr Sriram Panchu, learned Senior Counsel practising before the
Madras High Court for that purpose. We request Mr Sriram Panchu to
act as a mediator. Any settlement may be filed by the parties by moving
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a miscellaneous application before this Court.
Para-14:- The appeals are disposed of accordingly."
66. Initially this Court was not inclined to interfere with the
impugned order for the present in view of the fact that the amount was
not so high, but considering the fact that the husband-petitioner has
been prevented from leading or adducing his evidence and his Petition
filed on 30.11.2022 for examining the P.W.-3, Bhola Prasad Barnwal
and P.W.-4 is Shiwani Kumari on recall was rejected and even his
another petition dated 13.12.2022 filed under Section 311 of the
Cr.P.C. alongwith evidence of his witness on an affidavit, thus, this
Court is inclined to interfere with Order dated 22.12.2022 passed by
Sri Rajiv Ranjan learned Additional Principal Judge, Additional
Family Court, Bermo at Tenughat, Bokaro in Original (Maintenance)
Suit No. 78 of 2019 because in absence of entire Lower Court
Records, this Court is not in a position to ascertain as to whether, the
petitioner was willing pay the witness cost of Rs. 1,000/- to the parties
or not and also in view of the fact that from 14.06.2022 till 16.11.2022
i.e. in a gap of five (5) months, evidence of the husband-petitioner was
closed.
67. However, during this period of five (5) months, there was
Annual Vacation of one month for the entire Civil Courts in the State
of Jharkhand during the said period of 14.06.2022 till 16.11.2022.
68. Although, the conduct of the petitioner is not so fair to
allow him to adduce his evidence but taking into consideration the fact
that this is a matrimonial dispute and if the husband is willing to
contest the case on merit, then he may be allowed to participate in the
proceeding under Section 125 Cr.P.C subject to certain rider so that
2025:JHHC:11037
the entire things may come on record in order to adjudicate the dispute
between both the parties finally to arrive of a just conclusion in
fairness as he has to pay the maintenance amount if he fails to rebut
the evidence of the applicant wife-O.P No.2.
69. Had the petitioner not filed his evidence on an affidavit and
had he not filed any Petition to recall the evidence of the P.W.-3,
Bhola Prasad Barnwal and P.W.-4, Shiwani Kumari after the dismissal
of Cr. M. P. No. 1316 of 2022 by the Co-ordinate Bench (Hon'ble
Mr. Justice Sanjay Kumar Dwivedi) of this Court then this Court
might not have considered his case and he also filed the evidence of a
witness on an affidavit (which is not the part of the Lower Court
Records as the same has not been sent by the learned Court below),
however, it can be presumed that the husband-petitioner wants to
contest the case and it will be proper to allow him to contest the case
on merit and to adduce his evidence.
70. However, at the same time he cannot be allowed latitude to
drag the case for a long period by filing vexatious petition before the
learned Court below or before the High Court and a time limit for
doing a certain thing has to be fixed and summarized so that the
matter may be finally decided within a reasonable period.
71. Therefore, the petitioner cannot be allowed to take
advantage of his own ground also and hence he has to pay monthly
maintenance to his wife-opposite party no. 2 by way of interim
maintenance till the disposal of O. M. Case No. 78 of 2019 pending
before the learned Court below and maintenance amount by way of
interim maintenance has to be paid from the date of filing of
Maintenance Petition under Section 125 Cr.P.C. i.e. on 15.03.2019 as
the wife-opposite party no. 2 cannot be denied of her valuable rights
2025:JHHC:11037
accrued to her due to hasty attitude of her husband-the petitioner.
72. At the same time, wife cannot be deprived of her legal
rights for getting some maintenance amount as because, the learned
Court below vide order dated 16.11.2022 has been rejected Petition
for grant of interim maintenance on the ground that the maintenance
case is on the verge of disposal.
73. Even the petitioner has adopted the delaying practice as he
had filed Criminal Revision Application in the year 2023 before this
High Court on 03.02.2023 and notice was issued upon the opposite
party no. 2 on 21.06.2023 by the Co-ordinate Bench (Justice Ratnaker
Bhengra as then His Lordship was) of this Court and it was directed to
be listed after three weeks. However, the case has been placed before
this Court for the first time on 21.02.2025 only after receiving the
order dated 31.01.2025 passed in Special Leave to Appeal (Crl.) No.
8036 by the Hon'ble Supreme Court.
74. Thereafter even during pendency of this Criminal Revision
Application, initially both the parties have shown willingness to
compromise the case by way of one time settlement before this Court
and the petitioner was earlier ready to pay Rs. 5,00 Lakhs (Rs.
5,00,000/-) to the wife-opposite party no. 2 by way of one time
settlement and to return her jewelleries and which was accepted by
the wife-opposite party no. 2. The wife-opposite party no. 2 had
fairly stated before this Court that she is willing to compromise on the
said amount of Rs. 5,00,000/-, had petitioner returned certain
jewelleries, which were being kept by her in-laws members. The
petitioner had given the Demand Draft of Rs. 2,00,000/- to the
opposite party no. 2, but the petitioner could not fulfill the other
conditions for entering into the compromise. Later on, the wife-
2025:JHHC:11037
opposite party no. 2 returned the said Demand Draft of Rs. 2,00,000/-
to the husband- petitioner and the compromise failed only on the
ground that the petitioner has not given certain jewelleries to the wife-
opposite party no. 2 as it was also the part of the compromise entered
into between them. Therefore, it is evident that the petitioner is trying
to linger his case and he is not sincere in accepting the mode of
compromise.
75. It would appear from the evidence of P.W.-1, Kokil Chand
Mahato, P.W.-2, Nand Kishore Verma, P.W.-3, Bhola Prasad Barnwal
and P.W.-4, Shiwani Kumari that the petitioner was getting monthly
salary of Rs. 30,000/- in Kolkatta at the time of his marriage and
hence it is presumed that the petitioner is capable to pay Rs. 6,000/-
per month to his wife i.e. the opposite party no. 2 by way of interim
maintenance from the date of filing of the Maintenance Case i.e. on
15.03.2019 and till the disposal of the Maintenance Case by the
learned Court below.
76. It is evident that the petitioner is an able bodied person and
he is an Engineer and a competent person.
77. Accordingly, this Court is of the view that the impugned
Order dated 22.12.2022 passed by Sri Rajiv Ranjan learned Additional
Principal Judge, Additional Family Court, Bermo at Tenughat, Bokaro
in Original (Maintenance) Suit No. 78 of 2019 is set aside liable to
due to hasty approach of the Court but subject to condition that the
petitioner will pay Rs. 6,000/- per month by way of interim
maintenance amount which can be treated partly as an interim
maintenance amount for the survival of the opposite party no. 2 from
the date of filing of Petition filed under Section 125 Cr. P. C. till the
disposal of the Original (Maintenance) Suit No. 78 of 2019 and the
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learned Court below shall allow the husband-petitioner to fully cross-
examine the P.W.-3, Bhola Prasad Barnwal and P.W.-4, Shiwani
Kumari and on the payment of cost of Rs. 1,000/- as has been directed
by the learned Court below vide order dated 05.04.2022 as there is no
rebuttal of income of the petitioner of Rs. 30,000/- per month as stated
by the P.W.-1, Kokil Chand Mahato, P.W.-2, Nand Kishore Verma,
P.W.-3, Bhola Prasad Barnwal and P.W.-4, Shiwani Kumari before
the learned Court below.
78. Accordingly, this Court is inclined to interfere with the
impugned order for the limited purpose. Therefore, the impugned
Order dated 22.12.2022 passed by Sri Rajiv Ranjan learned Additional
Principal Judge, Additional Family Court, Bermo at Tenughat, Bokaro
in Original (Maintenance) Suit No. 78 of 2019 is set aside and the
case is remitted back to the extent that the learned Court below shall
give opportunity to the petitioner to cross-examine the P.W.-3, Bhola
Prasad Barnwal and P.W.-4, Shiwani Kumari. The learned Court
below is further directed to bring the photocopies of documents filed
by P.W.-4, Shiwani Kumar, i.e. the applicant during her evidence.
79. Under the circumstances, the impugned order dated
22.12.2022 passed by Sri Rajiv Ranjan learned Additional Principal
Judge, Additional Family Court, Bermo at Tenughat, Bokaro in
Original (Maintenance) Suit No. 78 of 2019 is set aside with the
direction to Sri Rajiv Ranjan learned Additional Principal Judge,
Additional Family Court, Bermo at Tenughat, Bokaro or his Successor
Court to decide the matter afresh within the certain time period as the
matter is old one filed in the year 2019 and hence, learned Additional
Principal Judge, Additional Family Court, Bermo at Tenughat, Bokaro
is directed to allow cross- examination of P.W.-3, Bhola Prasad
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Barnwal and P.W.-4, Shiwani Kumari on merit and may also permit
the wife-O.P No.2 to examine any other witnesses in support of her
case and who may be also examined by the husband-petitioner of this
case on the same day within a period of four weeks from the date of
receipt of the copy of this Judgment.
Thereafter, the learned Court below shall permit the husband-
petitioner to produce his witnesses including himself in support of his
case and who may be cross-examined on behalf of the wife-opposite
party no. 2 within a period of six weeks after closure of evidence of
the applicant-wife-the opposite party no. 2 before the learned Court
below and thus, the learned Court below shall pass the Final Judgment
within four (04) weeks without being prejudiced and influenced by the
order passed by this Court and the learned Court below should record
its own reasons in the final order.
80. Accordingly, the petitioner is directed to pay the
maintenance of Rs. 6,000/- per month by way of interim maintenance
to his wife-the opposite party no. 2 from the date of filing of the
application under Section 125 of the Cr. P. C. i.e. on 15.03.2019 and
the petitioner shall pay the arrears of maintenance amount @ Rs.
6,000/- per month from the date of filing of the application under
Section 125 of the Cr. P. C. i.e. on 15.03.2019 till the final disposal of
Original (Maintenance) Suit No. 78 of 2019 before the learned
Additional Principal Judge, Additional Family Court, Bermo at
Tenughat in three (3) equal instalment, which may be calculated by
the parties as well as by the learned Court below in this case in light of
the Judgment passed by this Court.
81. However, the petitioner will be entitled to cross-examine
i.e. P.W.-3, Bhola Prasad Barnwal and P.W.-4, Shiwani Kumari only
2025:JHHC:11037
after the deposit of first installment out of three installments of the
entire arrears of the interim maintenance amount. Thereafter the
petitioner will adduce his evidence by depositing 2 nd installment of
arrears of the interim maintenance amount of the opposite party no. 2
and it will be desirable that the petitioner will deposit 3rd installment
in favour of the wife-opposite party no. 2 before passing of the final
judgment by the learned Court below.
82. However, it will also open to the wife-opposite party no. 2
as well as the petitioner to examine their witnesses and themselves in
support of their case even on the earlier date or time frame fixed by
the Court as per their convenience, for an early disposal of the case.
83. Let a copy of this Judgment be sent to the learned Court
below for the needful.
(Sanjay Prasad, J.)
Kamlesh/N. A. F. R.
