Patna High Court
Rajesh Kumar vs Nutan Devi on 18 February, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.1354 of 2019
Arising Out of PS. Case No.- Year-0 Thana- District- Sheikhpura
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Rajesh Kumar Son Of Syamali Singh Resident Of Village - Ghonghsa, P.S.-
Halsi, Distt - Lakhisarai. The Then Posted At Tripura In C.R.P.F, Presently
Posted In Manesar, Gurgaon.
... ... Petitioner/s
Versus
Nutan Devi Wife Of Rajesh Kumar, D/O Bimaldeo Prasad Singh Resident Of
Village - Ghongsa, Ps.- Halsi, Distt - Lakhisarai, Presently Resident Of
Village - Mafo, P.S.- Mehus, Distt - Sheikhpua.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Narain Sinha, Advocate
For the O.P. : Mr. Rambabu Yadav, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 18-02-2025
The present Criminal Revision petition has been
preferred by the petitioner-husband against the impugned order
dated 26.04.2019, passed by learned Principal Judge, Family
Court, Sheikhpura in Maintenance Case No. 29M of 2017,
whereby learned Family Court has directed the petitioner-
husband to pay Rs. 15,000/- per month from the date of filing of
the petition towards her maintenance.
2. The factual background of this case is that the
marriage was solemnized between the petitioner/Rajesh Kumar
and Opposite Party/Nutan Devi on 07.05.2009, as per Hindu
rites and customs and subsequent to the marriage, the wife
Patna High Court CR. REV. No.1354 of 2019 dt.18-02-2025
joined her husband in his matrimonial home. But soon
thereafter, marriage started running into rough weather on
account of additional demand of dowry and on account of non-
fulfillment of the same, torturing of the O.P./wife by the
husband.
3. It is further stated by wife in her maintenance
petition that husband (petitioner herein) is in CRPF, drawing
monthly salary of Rs. 50,000/- and she has no means of income
and is unable to maintain herself.
4. It further transpires that on notice, the husband
appeared in the maintenance proceeding and contested the
maintenance petition filed by her wife. As per husband, just
after seven days of marriage, the wife left the matrimonial home
on her own without any sufficient reason. Subsequently, the
husband filed one matrimonial petition under Section 9 of
Hindu Marriage Act for restitution of conjugal rights bearing
Matrimonial Case No. 199 of 2016 and the same has been
decreed ex-parte in favour of the husband. Subsequently, even
ex-parte divorce has been also obtained by the husband against
his wife.
5. After trial, learned Family Court found that the
husband is a Constable in CRPF and getting monthly salary of
Patna High Court CR. REV. No.1354 of 2019 dt.18-02-2025
Rs. 30,000/- and hence, directed the husband to pay Rs. 15,000/-
per month to his wife towards her maintenance.
6. I heard learned counsel for the petitioner and
learned counsel for the Opposite Party.
7. Learned counsel for the petitioner submits that the
impugned order is not sustainable in the eye of law. To
substantiate his claim, he submits that as per finding of the
Family Court, the monthly salary of the husband was Rs.
30,000/- and out of Rs. 30,000/- per month, Rs. 15,000/- has
been directed to be paid to his wife towards maintenance. That
is against all legal principles in regard to maintenance,
admissible to wife. He further submits that besides the wife,
even his parents are also dependent upon him.
8. He further submits that subsequent to the
maintenance order, he has got ex-parte divorce against the wife
and thereafter, no appeal has been preferred by the wife against
the previous decree of restitution of conjugal rights or even
decree of divorce passed on 13.06.2019 and the petitioner has
entered into second marriage with another lady on 28.06.2020
and at present, even one daughter is born out of the wedlock
with the second wife. Even second child is expected by the
second wife within few months.
Patna High Court CR. REV. No.1354 of 2019 dt.18-02-2025
9. Hence, the impugned order directing the petitioner-
husband to pay Rs. 15,000/- per month to his previous wife is
neither maintainable in law, nor feasible in practice by the
petitioner-husband.
10. However, learned counsel for the Opposite
Party/wife defends the impugned order submitting that there is
no illegality or infirmity in it. He further submits that decree of
restitution of conjugal rights as well as divorce petition has been
passed ex-parte without any knowledge of the wife/O.P. and no
notice was served and hence, she was not aware.
11. He further submits that on account of medical and
financial difficulty, she has not preferred even appeal against the
decree of restitution of conjugal rights as well as divorce. He
further submits that passing of restitution of conjugal rights is
not a hurdle in awarding of maintenance in favour of the wife.
He refers to and relies upon Rina Kumari Vs. Dinesh Kumar
Mahto, 2025 SCC OnLine SC 72.
12. He further submits that after the marriage, she had
joined the matrimonial home of her husband, but additional
demand of dowry started and on account of non-fulfillment of
the same, she was subjected to cruelty, which she was unable to
bear. Hence, she went back to her maike and without any
Patna High Court CR. REV. No.1354 of 2019 dt.18-02-2025
information, the decree of restitution of conjugal rights as well
as divorce has been passed.
13. I considered the rival submissions of the parties
and perused the materials on record.
14. I find that marriage is not disputed and even salary
at the time of filing the petition is not disputed. Only dispute is
living of the wife separately from the husband without any
reasonable cause. As per husband, she has left the matrimonial
home without any rhyme and reason and hence, she is not
entitled to get any maintenance and even restitution of conjugal
rights has been decreed ex-parte against his wife. However,
Hon'ble Supreme Court in Rina Kumari (supra) has held as
follows:-
"29. Thus, the preponderance of judicial
thought weighs in favour of upholding the wife's right to
maintenance under Section 125 Cr. P.C. and the mere
passing of a decree for restitution of conjugal rights at the
husband's behest and non-compliance therewith by the
wife would not, by itself, be sufficient to attract the
disqualification under Section 125(4) Cr. P.C. It would
depend on the facts of the individual case and it would
have to be decided, on the strength of the material and
evidence available, whether the wife still had valid and
sufficient reason to refuse to live with her husband,
despite such a decree. There can be no hard and fast rule
in this regard and it must invariably depend on the
distinctive facts and circumstances obtaining in each
particular case. In any event, a decree for restitution of
conjugal rights secured by a husband coupled with non-
compliance therewith by the wife would not be
determinative straightaway either of her right to
maintenance or the applicability of the disqualification
under Section 125(4) Cr. P.C.Thus, the preponderance of
Patna High Court CR. REV. No.1354 of 2019 dt.18-02-2025
judicial thought weighs in favour of upholding the wife's
right to maintenance under Section 125 Cr. P.C. and the
mere passing of a decree for restitution of conjugal rights
at the husband's behest and non-compliance therewith by
the wife would not, by itself, be sufficient to attract the
disqualification under Section 125(4) Cr. P.C. It would
depend on the facts of the individual case and it would
have to be decided, on the strength of the material and
evidence available, whether the wife still had valid and
sufficient reason to refuse to live with her husband,
despite such a decree. There can be no hard and fast rule
in this regard and it must invariably depend on the
distinctive facts and circumstances obtaining in each
particular case. In any event, a decree for restitution of
conjugal rights secured by a husband coupled with non-
compliance therewith by the wife would not be
determinative straightaway either of her right to
maintenance or the applicability of the disqualification
under Section 125(4) Cr. P.C.Thus, the preponderance of
judicial thought weighs in favour of upholding the wife's
right to maintenance under Section 125 Cr. P.C. and the
mere passing of a decree for restitution of conjugal rights
at the husband's behest and non-compliance therewith by
the wife would not, by itself, be sufficient to attract the
disqualification under Section 125(4) Cr. P.C. It would
depend on the facts of the individual case and it would
have to be decided, on the strength of the material and
evidence available, whether the wife still had valid and
sufficient reason to refuse to live with her husband,
despite such a decree. There can be no hard and fast rule
in this regard and it must invariably depend on the
distinctive facts and circumstances obtaining in each
particular case. In any event, a decree for restitution of
conjugal rights secured by a husband coupled with non-
compliance therewith by the wife would not be
determinative straightaway either of her right to
maintenance or the applicability of the disqualification
under Section 125(4) Cr. P.C."
15. Hence, it is clear that passing of decree of
restitution of conjugal rights is not a bar to award any
maintenance to the wife, if the Court is convinced and satisfied
that she is living separately from her husband with valid reason
Patna High Court CR. REV. No.1354 of 2019 dt.18-02-2025
and in the case on hand, it clearly transpires from the record that
she is living separately at her maike on account of cruelty
committed by the husband due to non-fulfillment of demand of
additional dowry.
16. However, I find that undisputedly the petitioner-
husband was getting monthly salary of Rs. 30,000/- at the time
of filing the maintenance petition and out of Rs. 30,000/-, award
of Rs. 15,000/- per month towards maintenance is excessive.
17. Hence, the impugned order is modified by
reducing the amount of maintenance @ Rs. 9,500/- per month,
payable by the husband to his wife since the date of filing the
maintenance petition.
18. However, this rate of maintenance will be subject
to increment @ 5% per annum from today. In other words, after
one year from today, the amount of the maintenance will be
increased by 5% of maintenance and this increment will keep
going on in the month of February every year and this
maintenance will be permissible to the wife till she remarries.
19. The husband is having higher salary at present.
But the number of dependents has also increased, because he
has one additional legally wedded wife and one daughter born
out of the wedlock with the new wife and as per statement of the
Patna High Court CR. REV. No.1354 of 2019 dt.18-02-2025
learned counsel for the petitioner-husband, even second child is
expected in a few months. Hence, increment of maintenance @
5% per annum would be sufficient in the interest of justice.
20. It further transpires that during the pendency of
this petition, petitioner-husband has made some payment.
Hence, the petitioner-husband is also directed to pay up the
whole arrear amount after setting off the payment already made
towards maintenance, within the next two months by way of
bank draft. In case, the arrear is not paid, it will be treated as a
contempt of Court and the petitioner-husband would be dealt
with accordingly.
21. Accordingly, the present petition stands disposed
of.
22. Put up this matter on 18.04.2025, for compliance
regarding payment of the arrears.
(Jitendra Kumar, J.)
shoaib/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.02.2025.
Transmission Date 19.02.2025.
