Partly allowed

Roshan Gupta v. the State of Jharkhand

Jharkhand HC24 Jul 2023Cr.Rev./674/2021

Case brief

AI extract

What is this about?

This Criminal Revision modified a Family Court order granting maintenance. The court reduced the monthly maintenance amounts from Rs. 10,000 to Rs. 7,000 for the wife and son, adjusted arrears against prior payments, and upheld the lower court's general finding despite the petitioner's non-appearance.

What did the court decide?

Modified the maintenance quantum from Rs. 10,000 to Rs. 7,000 per month for wife and son; directed payment of arrears; ordered adjustment of prior payments.

Roshan Gupta Vs the State of Jharkhand — Maintenance and Alimony | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 674 of 2021

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….

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Roshan Gupta …… Petitioner

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Versus

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The State of Jharkhand

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Anjali Kumari @ Gupta

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Rudransh Gupta …… Opp. Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioner : Mr. Suraj Singh, Advocate For the State : Mrs. Priya Shrestha, A. P. P. For the O. P. No. 2 : Ms. Omiya Anusha, Advocate Ms. Ruchi Mukti, Advocate Mr. Amitesh Kumar Geason, Advocate

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…. .

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ORAL ORDER IN COURT

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09/24.07.2023 Heard learned counsel for the petitioner and learned counsel for the State and learned counsel for opposite party no. 2. 2. The instant Criminal Revision No. 674 of 2021 has been filed on behalf of the petitioner challenging the judgment dated 27.03.2021 passed in O. M. C. No. 49 of 2019 by the learned Principal Judge, Family Court, Gumla by which learned Principal Judge, Family Court, Gumla has directed the petitioner to pay maintenance of Rs. 10,000/- to his wife i.e. opposite party no. 2 and Rs. 10,000/- opposite party no. 3 till he attains majority from the date of filing of application on 10^th day of every succeeding month. The learned Court below has directed the petitioner to deposit arrears of the amount in the account of the opposite party no. 2, failing which opposite party no. 2 will be at liberty to enforce the same by the process of law.

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It is submitted by the learned counsel for the petitioner that impugned judgment passed by the learned Court below is illegal and not sustainable in the eyes of law. It is submitted that learned Court below has not given proper opportunity to the

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petitioner to present his case and it was a pandemic COVID-19 period. It is submitted that the learned Court below has decided the prayer of the opposite party no. 2 merely on the basis of photographs and income of the father of the opposite party no. 2 without any evidence. It is submitted that the petitioner is an unemployed person and is not doing anything. It is submitted that the petitioner is dependent upon his father and assisting his father in business work, but there is no independent source of income of the petitioner. It is submitted that the allegation against the petitioner is false and concocted and the opposite party no. 2 has falsely instituted a case being Ghagra P. S. Case No. 150 of 2019 under Sections 498-A/ 341/323/506/34 of the Indian Penal Code and Section ¾ of the Dowry Prohibition Act. It is submitted that the petitioner had also filed a petition under Section 9 of the Hindu Marriage Act, which was allowed vide judgment dated 29.09.2021 by the Court of Sri G. S. Kunjam, learned Principal Judge, Family Court, Jashpur, Chhattisgarh by directing the opposite party no. 2 to join the company of the petitioner. It is submitted that even after the opposite party no. 2 has not joined the company of the petitioner and the petitioner has been compelled to file a case for divorce under Section 13(b) of the Hindu Marriage Act. It is submitted that the petitioner has paid Rs. 4,00,000/- to the opposite party no. 2 in light of the order dated 02.11.2020 passed in A. B. A. No. 5268 of 2020 by the Co-ordinate Bench of this Court and petitioner has paid Rs. 30,000/- to the opposite party no. 2 in light of the order dated 10.11.2020 in A. B. A. No. 5725 of 2020 passed by the Co-ordinate Bench of this Court and thereafter certain amount has also been paid to the opposite party no. 2 and he has paid total Rs. 5,10,000/- to the opposite party no. 2 till date and as such, in view of the above, finding of the learned Court below is perverse and as such, the order passed by the learned Court below

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is not sustainable in the eye of law and may be set aside in the interest of justice.

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On the other hand, learned counsel for the State has submitted that the impugned judgement passed by the learned Court below is fit and proper and no interference is required by this Court. It is further submitted that learned Court below has committed no illegality by allowing the maintenance in favour of the opposite party no. 2. It is submitted that the applicant- wife has fully supported her case in the maintenance case during her crossexamination and as such, the criminal revision application may be dismissed.

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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 judgment passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that this Criminal Revision Application is devoid of merit. It is submitted that the petitioner has thoroughly neglected the opposite party no. 2 and tortured her on several times. It is submitted that even during at the time of her pregnancy, boiled water has been poured on her body and due to which she had sustained burn injuries and in support of the same, she has shown certain photographs produced and marked before the learned Court below. It is submitted that the father of the petitioner is a highly reputed person and also has a building and has a showroom of Hundai Car. It is submitted that P.W.-1, Bimla Devi, mother of the opposite party no. 1 has fully supported the case. It is submitted that P.W.-3 is Anjali Kumari, applicant-wife and she has fully supported her case during her evidence. P.W.-1, Bimla Devi, mother of the opposite party no. 2 and P.W.-2, Dinesh Prasad Sahu, father of the opposite party no. 2 have fully supported her case and as such, the impugned judgment passed by the learned

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Court below is fit and proper and no interference is required and as such, the impugned judgment passed by the learned Court below may be upheld and this Criminal Revision Application may be dismissed.

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Perused the Lower Court Records and the impugned judgment passed by the learned Court below and considered the submissions of learned counsel for both the sides. 7. It transpires that the opposite party no. 2 is legally married wife of the petitioner and the marriage of O.P. No. 2 was solemnized with the petitioner on 22.04.2016. 8. It further transpires that the opposite party no. 2 has filed Original Maintenance Case No. 49 of 2019 under Section 125 of the Cr. P.C. in the Court of learned Principal Judge, Family Court, Gumla for grant of maintenance of Rs. 10,000/- per month for herself and Rs. 10,000/- for her minor son from this petitioner. 9. It has been stated in the petition filed under Section 125 of the Cr. P.C. that opposite party no. 2 is legally wedded wife of this petitioner and the marriage of O.P. No. 2 was solemnized with the petitioner on 22.04.2016 as per Hindu Rites and Customs and at the time of her marriage, her father has paid Rs. 7,00,000/- as dowry and given various valuable articles, cash and jewellery etc. It is further stated that after marriage she was treated like a maid servant and she was tortured and assaulted several times. It is stated that her husband has got illicit relationship with one lady Simran Soni and is also having habit of taking wine and ganja. It is stated that she has also discovered a Whatsapp messages of her husband with some ladies. It has been alleged that in the month of May, 2019, she was ousted from matrimonial home and living in the house of her parent and since then, she along with her children are dependent upon her parent. It is stated that the father of the opposite party no. 2 is maintaining her somehow. It is stated that

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her husband got Car Washing Plant and is doing Contract work and she has claimed that her father in-law is a BJP Leader. It is submitted that monthly income of her husband is Rs. 50,000/- per month and has got huge movable and immovable property.

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It transpires that after notice, the petitioner had appeared on 02.12.2019 and the matter was referred to mediation.

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It transpires that in the meantime, P.O. of Family Court had retired and the matter remained pending till 24.03.2020. Thereafter on 09.12.2020, the opposite party no. 2 was directed to take steps for fresh steps for service of notice upon the petitioner. 12. It transpires that the learned Court below has observed in the order sheet dated 08.01.2021 that husband of the opposite party no. 2 has received notice on 30.12.2020, but has failed to appear on 08.01.2021 and 25.01.2021 and 04.02.2021 and 12.02.2021 respectively. However, on 12.02.2021, counsel for the petitioner-husband (opposite party) has informed the Court as mentioned in the order sheet “ no instruction on the behalf of the opposite party-husband” and it is evident that the petitioner has not appeared deliberately.

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Thereafter, vide order dated 18.02.2022, the petitionerhusband was debarred from filing the show cause and opposite party no. 2-wife was directed to produce the evidence.

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It transpires that the opposite party no. 2-wife in support of her case has got examined three witnesses, who are as follows:(i) P.W. -1 is Bimla Devi, mother of the opposite party no. 2.

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(ii) P.W.-2 is Dinesh Prasad Sahu, father of the opposite party no. 2.

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(iii) P.W.-3 is Anjali Kumari i.e. the wife-O. P. No. 2

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It transpires that opposite party no. 2 has got marked the following documents as Exhibits:-

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(i) Ext.-1 is certified copy of Ghaghra P. S. Case No. 150 of 2019.

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Thereafter the learned Court below vide impugned judgment has directed the petitioner to pay Rs. 10,000/- per month to the opposite party no. 2-wife and Rs. 10,000/- per month to the opposite party no. 3- her son.

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From scrutinizing the evidence of P.W.-3, Anjali Kumari (i.e. O. P. No. 2), it is clear that she is wife of the petitioner and she has fully supported her case by filing the evidence on affidavit and has stated that she was married with the petitioner on 22.04.2016 and she was tortured and assaulted and she was ousted from her matrimonial home. She has also stated that the father of the opposite party no. 2 is maintaining her somehow and her husband got car washing plant and is doing Contract work and she has claimed that her father in-law is a BJP Leader and has got a Hundai Showroom.

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It also transpires that P.W.-1, Bimla Devi and P.W.-2Dinesh Prasad Sahu have also supported the case of opposite party no.2.

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It transpires that said witnesses i.e. P.W.-1, Bimla Devi and P.W.-2- Dinesh Prasad Sahu were cross-examined on behalf of the Court.

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It transpires that on the one hand, the petitioner has failed to appear before the learned Principal Judge, Family Court, Gumla, on the other hand, he has filed a case being 20 (A)/2020 under Section 9 of the Hindu Marriage Act on 17.12.2020, which has been enclosed as Annexure-2 of this Criminal Revision Application, even during pandemic COVID-19 period and which was allowed ex-parte vide judgment dated 29.09.2021 by the Court of Sri G. S. Kunjam, learned Principal Judge, Family Court, Jashpur, Chhattisgarh by directing the opposite party no. 2 to join

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the company of the petitioner.

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20. Therefore, it is evident that the petitioner is trying to defeat the rightful claim of the wife-opposite party no. 2 by showing himself as a resident of Chhattisgarh on the one hand and on the other hand, the petitioner is not appearing before the learned Principal Judge, Family Court, Gumla on several dates and even the learned counsel for the petitioner has submitted no objection before the learned Court below i.e. before the learned Principal Judge, Family Court, Gumla.

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Therefore, the petitioner appears to have filed a case before the Court of Chhattisgarh only to defeat the claim of the opposite party no. 2.

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Although, the judgment has been passed by the learned Court below ex-parte and the income of the petitioner has not been fixed by the learned Court below, however, it is also the fact that the petitioner has also not denied the averment even by filing show cause. The petitioner has even not made any steps to recall the exparte order passed by the learned Court below and to recall the witnesses of the O. P. No. 2 for their cross-examination.

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Therefore, this Court is of the view that the conduct of the petitioner is not satisfactory. The opposite party no. 2 has filed counter affidavit showing the photographs of showroom of Hundai Car and also the WhatsApp Messages, which would also suggest that the petitioner has got some extra affairs also or at least having in touch with other woman.

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In view of the above, this Court is of the view that no illegality has been committed by the learned Court below by allowing the claim in favour of the opposite party no. 2 and her son.

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So far as quantum of maintenance is concerned, the same to be decided as per the mandate of the judgment rendered by the

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Hon’ble Supreme Court in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 that the husband is duty bound to maintain his wife and children.

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It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:-

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“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.

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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 nonworking 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]

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Para- 79. In Manish Jain v. Akanksha Jain [ Manish Jain v. Akanksha Jain , (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.

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Para- 80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own 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 ,

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(2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]

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Para- 112. In Badshah v. Urmila Badshah Godse [ Badshah v. Urmila Badshah Godse , (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13)

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“ 13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India . The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society .”

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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.”

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It also transpires that there is no documentary evidence regarding the income of the petitioner.

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It has been submitted by the learned counsel for the petitioner that till date the petitioner has paid Rs. 5,10,000/- to the opposite party no. 2.

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It further appears that even from the scanned copy of the photographs that there is some burn injury on the person of the opposite party no. 2.

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It also transpires that the evidence of the opposite party no. 2 has remained unrebutted before the learned Court below due to non-appearance of this petitioner as the petitioner has willfully and deliberately not appeared after engaging his counsel before the learned Court below and even the learned counsel for the petitioner has submitted ‘No Objection’ before the learned Court below.

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The order of maintenance has been passed on 27.03.2021 i.e. before passing of the ex-parte judgment dated 29.09.2021

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under Section 9 of the Hindu Marriage Act. Therefore, the protection of the petitioner under Section 9 of the Hindu Marriage Act is also not available.

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On the facts and in the circumstances of the case mentioned above, the quantum of maintenance granted to Rs. 10,000/- to his wife i.e. opposite party no. 2 and Rs. 10,000/opposite party no. 3 is reduced from Rs. 10,000/- to Rs. 7,000/respectively and from Rs. 10,000/- to Rs. 7,000/- respectively and opposite party no. 3 will be entitled to get the maintenance till he attains majority from the date of filing of application on 10^th day of every succeeding month.

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The petitioner is directed to pay the arrears of amount of maintenance within a period of four weeks from today. 33. However, the amount deposited by the petitioner as per the direction of the Co-ordinate Bench of this Court in A. B. A. No. 5268 of 2020 vide order dated 02.11.2020 and A. B. A. No. 5725 of 2020 vide order dated 10.11.2020 shall be adjusted as it has been observed in A. B. A. No. 5268 of 2020 vide order dated 02.11.2020 by the Co-ordinate Bench of this Court that “the said amount of Rs. 4,00,000/- shall be adjusted towards maintenance or one time settlement, if and when the same takes place between the son of the petitioner and the informant.”

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Accordingly, the judgment dated 27.03.2021 passed in O. M. C. No. 49 of 2019 by the learned Principal Judge, Family Court, Gumla is modified to the extent as indicated above and this Criminal Revision No. 674 of 2021 is partly allowed.

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Let a copy of this judgment be communicated to the learned Court blow at once by FAX.

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(Sanjay Prasad, J.)

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Kamlesh/

Roshan Gupta v. the State of Jharkhand

Case brief

What is this about?

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Roshan Gupta v. the State of Jharkhand

Case brief

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