Dismissed

Hemlata Devi v. the State of Jharkhand

Jharkhand HC15 Jul 2021Cr.Rev./224/2019

Case brief

AI extract

What is this about?

This criminal revision bench dismissed appeals by both husband and wife against a Family Court maintenance order. The Court held that the wife is entitled to maintenance based on the husband's total gross income without distinction, and that an interim compensation payment addressed backdated claims.

What did the court decide?

Both Criminal Revisions No. 1863 of 2018 and No. 224 of 2019 were dismissed; the impugned maintenance order dated 28.11.2018 was sustained.

Hemlata Devi Vs the State of Jharkhand — Maintenance and Alimony | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Criminal Revision No. 1863 of 2018

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Ajay Kumar … … Petitioner

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Versus

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The State of Jharkhand

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Hemlata Devi … … Respondents

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With Criminal Revision No. 224 of 2019

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Hemlata Devi @ Hemlata Kumari … … Petitioner Versus

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The State of Jharkhand

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Ajay Kumar … … Respondents

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CORAM:-HON’BLE MR. JUSTICE RAJESH KUMAR

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…….

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For the Petitioner : - Mr. Jitendra S. Singh, Adv. .( Cr. Revision No. 1863 of 2018 )

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Mr. Shashi Kant Thakur, Adv.( Cr. Revision No. 1863 of 2018 ) Mr. Gautam Kumar, Adv.( Cr. Revision No. 224 of 2019) Mr. Birat Kumar, Adv.( Cr. Revision No. 224 of 2019) For the State : - Mr. Santosh Kr. Shukla, APP ( Cr. Revision No. 1863 of 2018 ) Mr. Abhay Kumar Tiwari, APP ( Cr. Revision No. 224 of 2019 ) For the O.P. No. 2.: Mr. Gautam Kumar, Adv.( Cr. Revision No. 1863 of 2018 ) Mr. Birat Kumar, Adv.( Cr. Revision No. 1863 of 2018) Mr. Jitendra S. Singh, Adv.( Cr. Revision No. 224 of 2019) Mr. Shashi Kant Thakur, Adv.( Cr. Revision No. 224 of 2019)

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The matter was taken up through Video Conferencing. Learned counsels for the parties had no objection with it and submitted that the audio and video qualities were good.

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C.A.V. on 24.06.2021 Pronounced on 15/07/2021

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Both criminal revisions have been filed against the order dated 28.11.2018 passed by Sri Pradip Kumar Choubey, learned Principal Judge, Family Court, Pakur in Original Maintenance Case No. 33 of 2017 whereby maintenance of Rs. 10,000/- per month has been awarded to the wife and further Rs. 5,000/- towards litigation cost.

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Criminal Revision No. 1863 of 2018 has been filed by the husband and Criminal Revision No. 224 of 2019 has been filed by the wife.

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It appears that marriage has been solemnized between the parties as per the Hindu rites on 29.11.2012. It has been alleged by the wife that there was payment of cash as well as several household articles in consideration of marriage. After sometime, she was being maltreated by her husband and her in-laws and several times mediation has been made between the parties and finally a compliant case being Complaint Case No. 69 of 2017 has been filed in which cognizance for the offence under Section 498A of the Indian Penal Code along with other Sections have been taken against this petitioner (husband) and her in-laws.

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The present proceeding has been initiated for maintenance under Section 125 of the Cr. P. C. on 18.03.2017 in which impugned order has been passed on

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28.11.2018 whereby maintenance of Rs. 10,000/- per month has been awarded to the wife along with litigation cost of Rs. 5,000/-.

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By way of Criminal Revision No. 1863 of 2018, the husband has approached this Court against the order dated 28.11.2018 contending that maintenance of Rs. 10,000/- per month is excessive as it has been granted on the basis of gross income of Rs. 40,000/- plus and not on the basis of basic income i.e. Rs. 30,000/- plus. Her husband is working as a constable in the Railway Protection Force.

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In my opinion, contention of the husband is fallacious as wife gets maintenance on the basis of income of the husband and no distinction can be made between basic salary and gross salary, rather payment has to be made on the basis of income of the husband. Be that as it may, the amount of Rs. 10,000/- per month is reasonable and prayer for reduction of maintenance is unreasonable. Accordingly, Criminal Revision No. 1863 of 2018 filed by the husband is, hereby, dismissed.

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So far as Criminal Revision No. 224 of 2019 filed by the wife is concerned, prayer has been made for payment of 50% of the salary of her husband as maintenance and further maintenance should be paid from the date of institution of maintenance case i.e. 18.03.2017 and not from the date of order passed in Original Maintenance case No. 33 of 2017 on 28.11.2018, which has been made by the Court below. For this purpose, learned counsel for the petitioner –wife has relied upon the decision of the Hon’ble Supreme Court in the case of Rajnish Vs. Neha and Another dated 04.11.2020 passed in Cr. Appeal No. 730 of 2020 arising out of S. L. P. (Cr.) No. 9503 of 2018 .

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Upon hearing of the parties and considering the materials available on record, I find that, against the Complaint Case No. 69 of 2017, the husband has approached this Court for grant of anticipatory bail being A.B.A. No. 1247 of 2019, in which he has been granted anticipatory bail on 02.05.2019 subject to the condition that the petitioner will take his wife to his house and will keep her with full dignity. It further appears that subsequently, prayer for modification of the order dated 02.05.2019 passed in A.B.A. No. 1247 of 2019 has been filed through Cr. M. P. No. 1771 of 2019, which has been disposed of vide order dated 06.09.2019 and this order has been brought on record by the husband by filing supplementary affidavit in Criminal Revision No. 1863 of 2018.

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From perusal of above order, it appears that order dated 02.05.2019 passed in A.B.A. No. 1247 of 2019 has been modified, considering the fact that wife was not willing to resume the conjugal life as her mother is suffering from cancer. Husband has shown his willingness to pay Rs. 2,00,000/- as ad-interim compensation and considering the above fact, husband has been granted bail subject to payment of Rs. 2,00,000/-, which has been paid by him to his wife, as has been submitted before me.

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It has been stipulated in the above order of this Court that the compensation amount of Rs. 2,00,000/- shall be adjusted with respect to maintenance in any present

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or future proceeding between the parties or final settlement between the parties, if and when the same takes place.

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Claim of the wife for giving 50% of the salary as maintenance is not acceptable for the simple reason that the proceeding under Section 125 of the Cr. P. C. is not a partition suit, rather for maintenance. Wife is one of the family members and husband has to be maintained his parents and other dependant family members also. It has been brought on record that the husband is getting Rs. 40,000/- plus as gross salary. Considering this amount of salary, in the opinion of this Court, maintenance of Rs. 10,000/- per month to the wife as ordered by the Court below is reasonable as there is no child out of their wedlock and the fact that Rs. 2,00,000/- has been paid as lump sum to the wife and further wife has refused to resume the conjugal life on the plea that her mother is suffering from cancer.

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So far as claim for payment of maintenance from the date of institution is concerned, it appears that ad-interim compensation of Rs. 2,00,000/- has been made and this takes care of the grievance of the wife.

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In view of the above discussion, I find no reasonable ground to interfere with the impugned order dated 28.11.2018 passed by Sri Pradip Kumar Choubey, learned Principal Judge, Family Court, Pakur in Original Maintenance Case No. 33 of 2017 whereby Court below has awarded maintenance to wife. In the result, both the criminal revisions i.e. Criminal Revision No. 1863 of 2018 and Criminal Revision No. 224 of 2019 are, hereby, dismissed and the impugned order dated 28.11.2018 passed by Sri Pradip Kumar Choubey, learned Principal Judge, Family Court, Pakur in Original Maintenance Case No. 33 of 2017 is, hereby, sustained.

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I.A, if any, also stands disposed of.

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(Rajesh Kumar, J)

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kamlesh/NAFR/

Hemlata Devi v. the State of Jharkhand

Case brief

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Hemlata Devi v. the State of Jharkhand

Case brief

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