Dismissed

Mr MD Sahnawaj v. the State of Jharkhand

Jharkhand HC4 Oct 2024Cr.Rev./400/2023

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition challenging a maintenance order under Section 125 Cr.P.C. The Court upheld the Family Court's finding that the petitioner was liable to pay Rs. 10,000 per month, noting his failure to disclose assets as per Rajnesh guidelines and his employment in Russia.

What did the court decide?

Dismissal of the criminal revision petition; interim order vacated.

Mr MD Sahnawaj Vs the State of Jharkhand — Maintenance and Alimony | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 400 of 2023

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Mr. Md. Sahnawaj, Son of Late Saheb Rajja, Aged about 32 years, R/o Mullick Muhalla, Sunday Bazar, P.O.- Berma, P.S- Gandhinagar, District- Bokaro (Jharkhand) … … Petitioner

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-Versus-

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The State of Jharkhand

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Mrs. Chhoti Parveen wife of Md. Sahnawaj, Daughter of Md. Sirajuddin, Permanent resident of C/o Sri Sirajuddin, Qtr. No. 549, Mullick Muhalla, Sunday Bazar, P.O.- Bermo, P.S.- Gandhinagar, District- Bokaro (Jharkhand) … … Opp. Parties

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Rajeev Kr. Sinha, Advocate For the Opp. Party No.2 : Mr. Santosh Kumar, Advocate For the State : Mr. Vishwanath Ray, Advocate ---

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Reserved on 14.08.2024 Pronounced on 04.10.2024

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1. This criminal revision petition has been filed against the order dated 24.01.2023 passed by the learned Additional Principal Judge, Additional Family Court, Bermo at Tenughat (Bokaro), in Original Maintenance Case No. 171/2019 whereby and whereunder the petition filed by the applicantwife-Opposite Party No.2 under Section 125 of Cr.P.C. has been allowed and the petitioner has been directed to pay Rs.10,000/- (Ten Thousand) per month to the Opposite Party No.2 as maintenance from the date of filing of the case i.e. from 05.07.2019.

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2. The learned counsel for the petitioner submitted that the marriage of the petitioner with the Opposite Party No.2 was not solemnized as per the rituals and the marriage was not consummated. He further submitted that in the show cause, the petitioner had clearly stated that the applicant has independent source of income and that the petitioner is earning only to the extent of Rs.8,000/- to Rs.12,000/- per month and does not have enough source of income to the pay maintenance to the applicant. These aspects of the matter have not been considered properly and therefore, the impugned order calls for interference. He also submitted that the petitioner is at present

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working in Russia and at the relevant point of time also, he was working in Russia.

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3. He further submitted that pursuant to the judgment passed by the Hon'ble Supreme Court in the case of “ Rajnesh Vs. Neha" reported in (2021) 2 SCC 324 , the affidavit was filed by the Opposite Party No.2 (applicant), but the said affidavit was not filed by the petitioner.

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4. The learned counsel for the opposite parties opposed the prayer and submitted that there is no illegality, perversity or irregularity in the impugned order calling for any interference. 5. The facts of the case as per the petition filed under Section 125 of Cr.P.C. are that the applicant/Mrs. Chhoti Parveen is the legally married wife of the petitioner-Md. Sahnawaj. Their marriage was solemnized on 03.05.2017 according to Law at Bokaro and thereafter, they lived together as husband and wife, but no child was born out of their wedlock. The petitioner belongs to upper caste ‘ Saiyed’ muslim and the applicant belongs to lower caste ‘Ansari’ muslim. Prior to their marriage, both were living in the same locality and they fell in love with each other and got married on 03.05.2017 before District Marriage Officer, Bokaro. The petitioner is a technocrat and just after the marriage, he went to Russia for his job and used to send money to the applicant in her mother’s bank Account No. 489318210001343 and last payment of Rs.9,497/- was made on 11.12.2018. Since applicant was not taken to her matrimonial home after the marriage, she is residing at her parental house and when the petitioner came back from Russia, she insisted to take her to her matrimonial house, but it was avoided by the petitioner on some or the other pretext. On 22.03.2019, the petitioner took the applicant by his car to a nearby isolated place in a ‘Jungle and tried to make physical relation with her, but she objected and asked the applicant to take her to his house. Thereafter, the petitioner brutally assaulted the applicant and also demanded cash dowry so that his mother could be satisfied and left the applicant in injured and semi-conscious state. Later on, the applicant was taken to her parental house by passersby. She reported the matter to the local police who convened a panchayati where the petitioner alongwith his family members appeared and assured the applicant that she will be taken to her

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matrimonial house. But as soon as the petitioner came out of the police station, he declined to take the applicant to his house. Thereafter, Bermo Mahila P.S. Case No. 02/2019 dated 22.03.2019 under Sections 498(A)/34 of Indian Penal Code was registered. When the petitioner filed A.B.P. No.68/2019 before the court of the learned Principal Sessions Judge, Bokaro, the matter was referred to Mediation Center, but mediation failed and thereafter, prayer of the petitioner for anticipatory bail was rejected on 15.06.2019. Applicant is a housewife having no source of income and she is unable to maintain herself, whereas the petitioner is a technocrat having monthly income of Rs.1.5 to 2 Lakh in foreign currency, but he has flatly refused to maintain her. Accordingly, the applicant prayed for directing the petitioner to pay Rs.25,000/- per month to her towards her maintenance. 6. The petitioner-husband appeared on 16.08.2019 and filed his show cause on 06.12.2019 denying the claims of the applicant and stating that the applicant never lived with him as wife and husband. He further stated that he is not a technocrat, rather he has degree of technical education and is an unskilled labour and he earns Rs.10,000 – Rs. 12,000/- per month only and his payment is not regular. He has separate mess living separately from his widow mother and brother. He further stated that the applicant herself does not want to live with him and she wants to keep him as ‘Gharjamai’. No nikah was performed between the applicant and the petitioner and the applicant and her family members are trying to extort money from him and they are demanding Rs.10 Lakh. The applicant has cunningly arranged marriage with him with ill motive. He further stated that the applicant is doing private job and earns Rs.10-15 thousand per month and she is able to maintain herself, whereas he is facing hardship having no source of income and his condition is very miserable. He denied the allegation of dowry demand and stated that he and his family members have been falsely implicated in the case under Section 498(A) of IPC. He prayed for dismissal of the petition filed by the applicant under Section 125 of Cr.P.C.. 7. In the light of the pleadings of both sides, the learned Family Court formulated the following points for determination to decide the maintenance case:

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(I) Whether this petition is maintainable or not?

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(II) Whether the petitioner is entitled to get Maintenance from the O.P. as sought, if so, what should be the quantum of Maintenance?

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(III) What should be the date of payment of Maintenance and also what should be the mode of payment?

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8. The applicant examined altogether five witnesses in support of her case. PW-1 is Md. Sirajuddin (father of applicant), PW-2 is Shaban Parveen (sister-in-law of applicant), PW-3 is Md. Mokim Ansari (cousin brother of applicant), PW-4 is Md. Kalim Ansari (relative of applicant) and PW-5 is Chhoti Parveen (applicant herself).

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9. PW-5 is the applicant-wife herself who in her examination-in-chief filed on affidavit stated that she is legally married wife of the petitioner and her marriage with the petitioner was solemnized on 03.05.2017 at the office of the Special Marriage Officer, Bokaro. She exhibited the Certificate No.20/2017 dated 03.05.2017 as Mark-X for identification. No child was born to her out of the wedlock. She further stated that prior to their marriage, both were living in the same mohalla and they fell in love with each other. Her husband is an engineer working in Russia and just after the marriage, he went to Russia and he used to send money in the bank account of her mother as maintenance and the last payment of Rs.9497/- was made on 11.12.2018, but thereafter he stopped sending money. After returning from Russia, she pressed the petitioner for her bidai, but on 22.03.2019, he took her to a lonely place and tried to make physical relation with her, but he failed and he brutally assaulted her and demanded dowry and left her in semiunconscious condition and the nearby people took her to her house. Thereafter, she lodged Bermo Mahila P.S. Case No. 02/2019 dated 22.03.2019 under Sections 498(A)/34 of Indian Penal Code against her husband. She exhibited the certified copy of FIR as Exhibit-P-1. She exhibited her signatures on each page of the maintenance petition as ExhibitP-2 to P-2/5. She further stated that she is a house wife having no source of income, whereas her husband is a technocrat who earns Rs.1.2 to 2 Lakh per month in foreign currency and is able to maintain her. During crossexamination, she admitted that after the marriage, she had gone to Delhi

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with her husband and had stayed there in a lodge for about 15 days and after returning from Delhi, she is staying at her parental house because her husband went for his job. She denied the suggestion that her husband is not an engineer. She admitted that she is a Muslim, but her marriage was not solemnized as per Muslim Religion. She also admitted that her husband had sent money in her mother’s account twice or thrice prior to 11.12.2018. She denied the suggestion that they have no relation of husband and wife and she was never tortured by her husband for demand of dowry. She further stated that panchayati had taken place and she can file the paper of panchayati prepared at the police station. She denied the suggestion that the case filed under Section 498(A) of IPC on 22.03.2019 is false. She admitted that she and her parental family members are on bail in Complaint Case No.372/2019 filed by her mother-in-law namely, Rasida Bano against her and her parental family members.

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10. P.W.-1, P.W.-2, P.W.-3 and P.W.-4 have supported the case of the applicant in their respective examination-in-chief filed on affidavits. 11. PW-1 (father of applicant), in his cross-examination, admitted that the applicant had solemnized court marriage with the petitioner, but he was not a witness of the marriage. After Court marriage on that day, Sahnawaj stayed at his house and he went to Russia on the next day and his daughter stayed at his house. He had no knowledge about the job and salary of the petitioner. His daughter told him about her marriage after one year of solemnizing her court marriage. He has seen the certificate of the marriage. He further admitted that his house and the house of the petitioner are situated in the same mohalla. He further admitted that his daughter had made several attempts to go to her matrimonial house, but she never went to her matrimonial house. He admitted that they are on bail in the case filed by the mother of the petitioner. He further stated that the petitioner has vehicle and his mother lives in C.C.L. quarter.

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12. PW-2 (Bhabhi of applicant) in her cross-examination admitted that the marriage of the applicant was solemnized on 03.05.2017 and she had come to know about the marriage after one week and the applicant is residing at her parental house after the marriage. The applicant had gone to Delhi with

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the petitioner, but she never went to her matrimonial house. The petitioner is an engineer and was working in Russia.

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13. PW-3 (cousin brother of applicant) in his cross-examination admitted that he had come to know about the marriage of the applicant in the evening on 03.05.2017 and he knew that the applicant has love affair with the petitioner.

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14. PW-4 (relative of applicant) in his cross-examination admitted that he knows the petitioner for the last 6 years and he knew that the applicant and the petitioner have love affair. He admitted that the applicant is his cousin sister. The houses of the applicant and the petitioner are in the same locality. After the marriage, the applicant had gone to Delhi with the petitioner and returned to Bokaro after 10-15 days and he and his friend Mokim had received them at Bokaro station. He further admitted that the petitioner had sent Rs.9,500/- per month in the account of the mother of the applicant from the year 2017 to December, 2018. He further admitted that the applicant is presently residing at her parental house.

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15. The petitioner-husband produced and examined one witness Buland Iqbal as DW-1 on his behalf. DW-1 in his examination-chief filed on affidavit stated that he is the younger brother of the petitioner and the marriage of the petitioner with the applicant was never solemnized as per Muslim rites and they never lived as husband and wife and she has never come to the house of the petitioner after 03.05.2017. He further stated that the petitioner is a labour having no fixed income and he earns Rs.8,000 to 10,000/- per month and he has never paid any amount to the applicant as maintenance. After court marriage, the applicant is demanding Rs.10 Lakh from the petitioner for which his mother has filed Complaint Case No.372/2019 and the applicant has also filed Bermo Mahila P.S. Case No. 02/2019 under Sections 498(A)/34 of Indian Penal Code. He further stated that the applicant earns Rs.15,000/- per month from coaching business. In his cross-examination, he admitted that he has no knowledge of the present residence of the petitioner and he cannot say the exact number of students attending the tuition class of the applicant.

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16. The learned Family Court considered the evidences and materials on record and recorded its findings at Para-9, 10 and 11 of the order which read as under:

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“9. For Point No. (i) of determination

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Perused the record. This case has been filed by the petitioner against O.P. u/s 125 Cr.P.C. for maintenance for herself. Rs.25,000/per month towards the Maintenance has been demanded. It is admitted fact that there is certificate issued by Marriage Officer, Bokaro regarding solemnization of marriage of petitioner with the respondent and the petitioner is living separately from the O.P. and the O.P. is not looking after the petitioner and also not paying maintenance cost to her.

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Hence, under the circumstances, it can be safely said that Chhoti Praveen is legally married wife of O.P. Hence, the petition of the petitioner is maintainable. Therefore, Point No.(I) for determination is accordingly decided in favour of petitioner.

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10. Determination of Point No. (II & III)

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To decide the maintenance petition, the court is required to see the exact source of income of the husband. The Hon’ble Supreme Court of India in the case of Rajnesh Vs. Neha and Another reported in 2020 SCC OnLine SC 903 has been pleased to give guidelines to decide the petition filed for maintenance. In the light of the guidelines, given by the Hon’ble Supreme Court of India in the case of Rajnesh Vs. Neha and Another (supra), the parties were directed to file their respective affidavits of disclosure of assets and liabilities. But affidavit has been filed on behalf of the petitioner only regarding disclosure of her assets and liabilities.

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11. On careful scrutiny of the evidence and materials available on record, this court finds that the petitioner is the wife of the O.P.. It has also come in evidence that petitioner is living with her parents. PW-1 (father of petitioner) in Para- 3 and 4 of his examination-in-chief has clearly stated that after marriage, Md. Sahnawaj never came for ‘Bidai’ of petitioner Chhoti Parveen despite repeated request made by this witness. Further in Para-13 of his cross-examination, this witness says that after Court marriage on that day, Md. Sahnawaj stayed at his parents’ house and he went to Russia on next day. In Para-19 of his cross-examination, this witness says that many attempts were made by the daughter to go to her ‘Sasural’, but she was never taken to her ‘Sasural’. As such, petitioner had never lived at her matrimonial house.

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Furthermore, in Para-15 of his cross-examination, this witness says that his daughter told him about her marriage after one year of

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solemnizing her court marriage. Whereas, the petitioner (P.W.-5) in Para-17 of her cross-examination has stated that on 03.05.2017 after marriage, she went to Delhi with her husband Sahnawaj which seems to be unbelievable because father of the petitioner has no knowledge about her marriage. Hence, going to Delhi by petitioner with Md. Sahnawaj became doubtful. But in the instant case, this fact is not material to decide the facts in issue. Therefore, this court is of the view that the petitioner is able to establish her case for the purpose of getting maintenance from O.P.. So, she is entitled to get maintenance from the O.P. Hence, this Court finds that the petitioner is entitled to get maintenance from the O.P. u/s 125 Cr.P.C.”

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17. On the quantum of maintenance, the learned Family Court recorded its findings at Para-12 which reads as under:

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“ 12. Now the question of quantum of maintenance amount

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In his written statement, O.P. has admitted that he is earning Rs.10,000 – 12,000/- per month. Though petitioner alleged that O.P. is earning Rs.1,50,000/- per month because he is engineer, but no proof regarding this fact has been introduced. Further, O.P. claimed that petitioner is earning 10 to 15 thousand per month by giving tuition to students, but no proof regarding this has been adduced before court by the O.P.. More so, the proceedings U/s. 125 Cr.P.C. are summary in nature, Section 125 Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself. Since it is the sacrosanct duty of the husband to provide financial support to the wife, the husband was required to earn money even by physical labour, if he is able-bodies, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. The reliance may be placed upon the case of Bhuwan Mohan Singh Vs. Meena , reported in (2015) 6 SCC 353 . ………………………….”

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18. After going through the impugned order and the materials on record, this Court finds that the petitioner and Opposite Party No.2 solemnized their marriage on 03.05.2017 at the office of the Special Marriage Officer, Bokaro and Certificate No.20/2017 dated 03.05.2017, which has been exhibited as Mark-X for identification by the applicant, was issued to them and the petitioner has never denied the existence of the said marriage certificate. Rather the petitioner in his show cause has further stated that the applicant

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herself does not want to live with him and she wants to keep him as ‘Gharjamai’. These facts fully establish that the applicant-Mrs. Chhoti Parveen is a legally married wife of the petitioner.

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19. This Court further finds that PW-5 applicant-wife in her examinationin-chief stated that just after the marriage, the petitioner went to Russia for his job and he used to send money to her in her mother’s Bank Account No. 489318210001343 as maintenance and the last payment of Rs.9,497/- was made on 11.12.2018, but thereafter he stopped sending money and since she was not taken to her matrimonial home after the marriage, she is residing at her parental house. After returning from Russia also, the petitioner did not take her to her matrimonial house. PW-5 has further stated that on 22.03.2019, the petitioner took her to a lonely place and brutally assaulted her and demanded dowry and left her in semi-unconscious condition. The nearby people took her to her house and thereafter, she lodged Bermo Mahila P.S. Case No. 02/2019 dated 22.03.2019 under Sections 498(A)/34 of Indian Penal Code against the petitioner. She has exhibited the certified copy of FIR as Exhibit-P-1. P.W.-1, P.W.-2, P.W.-3 and P.W.-4 are the relatives of the applicant-wife and they have supported her case in their examination-in-chief as well as in their cross examination. DW-1 (younger brother of the petitioner) in his examination-in-chief stated that the applicant has never come to the house of the petitioner after 03.05.2017. Furthermore, the applicant-wife in her examination-in-chief has stated that she is a house wife having no source of income, whereas the petitioner works in Russia. She has also filed her affidavit disclosing her assets and liabilities. This Court finds that the applicant has successfully established her case that she is living at her parental house separate from the petitioner since the date of her marriage on 03.05.2017 with cogent and sufficient reasons. Accordingly, this court finds that the applicant-wife has successfully established her case getting maintenance from the petitioner.

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20. So far the quantum of maintenance is concerned, this Court finds that in the light of the guidelines laid down by the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha and Another (Criminal Appeal No.730/2020 dated 04.11.2020) reported in (2021) 2 SCC 324 , both parties

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were directed to file their respective affidavits of disclosure of assets and liabilities, but only the applicant-wife filed her affidavit disclosing her assets and liabilities, whereas the petitioner-husband did not file his affidavit disclosing his assets and liabilities.

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21. This Court further finds that the petitioner in his show cause has stated that he has degree of technical education and as per the submissions on behalf of the petitioner, he is at present working in Russia and at the relevant point of time also the petitioner was working in Russia. Furthermore, inspite of direction by the learned Family Court, the petitioner did not file his affidavit disclosing his assets and liabilities in compliance to the guidelines laid down by the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha and Another (supra). There is no explanation from the side of the petitioner for not filing the affidavit disclosing the assets and liabilities. The petitioner has neither pleaded nor has filed any document (copy of passport etc.) to demonstrate that he was in Russia due to which he could not file his affidavit disclosing his assets and liabilities. This Court further finds that the learned Family Court has directed the petitioner to pay an amount of Rs.10,000/- per month only to the Opposite Party No.2 as maintenance, which cannot be said to be excessive or disproportionate considering the earning potential of the petitioner.

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22. The Hon’ble Supreme Court in the case of Bakulabai and Another Vs. Ganga Ram and Another reported in (1988) 1 SCC 537 has observed that in circumstances where no error of law is discovered in the judgment passed under Section 125 of Code of Criminal Procedure, the revisional court is not justified in making a reassessment of evidence and substitute its own views.

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23. Considering the entire facts and circumstances of the case and in view of the aforesaid findings, this Court finds that the impugned order passed by the learned Family Court is a well-reasoned order having no illegality, perversity or irregularity and it does not call for any interference. Accordingly, this Court finds no merit in the criminal revision petition which is hereby dismissed .

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24. Interim order, if any, stands vacated.

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25. Pending interlocutory application, if any, is closed.

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26. Let a copy of this order be communicated to the learned court below through ‘FAX/email’.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-

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