Dileshwar Nag Vs the State of Jharkhand

2. This petition has been filed for setting aside the order passed in Maintenance Case No. 06/2015, T.R. No. 890 of 2018 dated 19.12.2018 under the provisions of Section 125 of Cr.P.C. by the learned Chief Judicial Magistrate, Simdega whereby the application filed by the opposite party No. 2 has been allowed and the learned court has passed the order of maintenance for an amount of Rs. 10,000/- per month in favour of the opposite party No. 2 from the date of institution of the complaint case.

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3. The learned counsel for the petitioner submits that the only point for consideration before this Court is that the impugned order has not taken into consideration the provision of Section 125(4) of Cr.P.C. which clearly provides that the wife is not entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or they are leaving separately by mutual consent.

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4. The learned counsel submits that Exhibit-F and Exhibit-C which are dated 06.05.1991 and 25.11.1993 respectively indicate that the wife of the petitioner did not want to live with the petitioner and rather she was living an adulterous life. He submits that vide affidavit marked as Exhibit-C, the wife of the petitioner had also mentioned to the extent that the affidavit dated 25.11.1993 can itself be taken as divorce and she will not claim anything from the petitioner.

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5. The learned counsel has also referred to Exhibit-F which is a letter written by the opposite party No. 2 to her father and submits that in the said letter dated 06.05.1991 the wife has mentioned about various mishaps which had happened with her.

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6. The learned counsel submits that since the opposite party No. 2 was willfully living separately and never wanted to reside with the petitioner, the petitioner had undertaken second marriage in the year 1994 and in such circumstances, the opposite party No. 2 is not entitled for maintenance. He submits that these aspects of the matter have not been properly considered by the learned court and therefore the impugned order calls for interference.

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7. The learned counsel appearing on behalf of the opposite party No. 2 has opposed the prayer and has submitted that the marriage was solemnized in the year 1989 and the couple was blessed with a girl child on 02.01.1993 and the petitioner having performed second marriage, there was no scope for the opposite party No. 2 to live with the petitioner. The learned counsel has also submitted that a criminal case under Section 498-A of the Indian Penal Code was also instituted by the opposite party No. 2 as back as in the year 1993 and therefore also there was no reason for the opposite party No. 2 to stay with the petitioner. He has also submitted that in the show cause filed before the learned court, no allegation of adultery was made by the petitioner and rather the petitioner had referred the criminal case under Section 498-A of IPC and had stated that the opposite party No. 2 having left the petitioner, the petitioner had solemnized second marriage. The learned counsel submits that there is no

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illegality or perversity or material irregularity in the impugned order calling for interference.

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8. After hearing the learned counsel for the parties and going through the materials on record, this Court finds that the marriage between the petitioner and the opposite party No. 2 in the year 1989 is not in dispute. It is further not in dispute that a girl child was born on 02.01.1993. It is also not in dispute that the petitioner is a government servant.

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9. It further appears that the opposite party No. 2 filed an application for maintenance of herself and her daughter under Section 125 of Cr.P.C. stating that the present petitioner had performed second marriage and that she had no source of income to maintain herself and her daughter. It was also stated that for last three years she was not being paid any amount and when she has been making an attempt to go to the house of the petitioner, she was not permitted to enter.

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10. A show cause was filed by the petitioner stating that the child was born in the year 1992 and not 1993 and that one criminal case was also lodged by the opposite party No. 2 in the year 1993 and the opposite party No. 2 willfully decided to live separately from the petitioner by stating on affidavit that she was giving divorce to the petitioner and the petitioner had performed second marriage. It was the case of the petitioner that the opposite party No. 2 had left the petitioner and in such circumstances, he performed second marriage.

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11. It appears that earlier an order dated 10.12.2015 was passed by the learned Judicial Magistrate, 1^st Class, Simdega by which an order of interim maintenance was passed to the extent of Rs. 5,000/- and the same was affirmed by the learned Additional Sessions Judge, Simdega vide order dated 17.05.2017 in Cr. Revision No. 01 of 2016. The order dated 17.05.2017 was challenged by the petitioner in Cr. M.P. No. 1423 of 2017 before this Court and this Court refused to interfere with the order of interim maintenance and was of the view that it was for the learned court to take all materials into consideration. Thereafter, the present order was passed on 19.12.2018.

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12. Before the learned court, altogether 05 witnesses were examined from the side of the opposite party No. 2 and she herself was examined as P.W.-1 and number of exhibits were also produced by the opposite party No. 2. 13. So far as the petitioner is concerned, he examined himself as D.W.-1 and exhibited number of documents including two letters of the opposite party No. 2. The petitioner has stated that after the letter dated 23.02.1993 and 26.05.1993, the opposite party No. 2 refused to accompany the petitioner and started living separately and in the year 1995, the petitioner performed second marriage and has one son and four daughters from the second marriage and he has to incur lot of expenses to maintain his second wife and children. This witness was cross-examined and the learned court recorded its finding in paragraph Nos. 8,9 and 10 as under: -

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“8. If I go through the testimony of D.W.2, Ram Dayal Ohdar, D.W3 Jeet Mohan Ohdar, D.W. 4 Shankar Das all have supported case of opposite party but they in their cross-examination accepted and admitted that Shanti Devi is wife of Dileshwar Nag who is working as Assistant in Konmerla High School and Dileshwar Nag married twice with Dileshwari Devi in the life time of his first wife Shanti Devi.

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9. On perusal of case record, testimony of complainant as well as opposite party and on perusal of documents furnished by both the sides I do find that complainant Shanti Devi is legally married first wife of O.P. Dileshwar Nag, she got one daughter namely Kiran Kumari at present who is married and residing at her Sasural. Dileshwar Nag is working as Assistant in Konmerla High School and got salary around Rs. 54,000/He also got few income from his landed properties. It is also very much evident by the evidence produced by complainant and opposite party that Dileshwar Nag admitted married twice with Dileshwari Devi in the life time of Shanti Devi and has got one son and four daughters who all are student. If the contention of opposite party with regard to service of Shanti Devi is taken into consideration it appears that she used to earn Rs. 2,200/- working as a Sahayaika that certificate was issued on 05.06.17. In the other side it is very much established that opposite party is getting more than 54,000/-as salary.

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10. Considering the above facts and circumstances since complainant Shanti Devi is married wife of opposite party Dileshwar Nag who is residing separately with her husband, she appears unable to maintain her as per status of her husband. Therefore, keeping the gap between both the sides in mind, I am in favour to pass an order of maintenance of Rs. 10,000/- (Rs. ten thousand) in favour of Shanti Devi. Opposite party Dileshwar Nag is directed to pay maintenance of Rs. 10,000/- from the date of institution of this complaint case which is 22.05.2015 in which interim maintenance paid by him will be adjusted. Complainant is directed to furnish his bank account details and mobile phone number to this court. Opposite party Dileshwar Nag is directed to pay balance dues amount from 22.05.2015 within a month by transferring the balance

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amount in the account of complainant O.P. Dileshwar Nag is further directed to deposit the maintenance amount of Rs. 10,000/- by the 10^th day of every month.”

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14. The petitioner and opposite party No. 2 had at least lived together till 26.05.1993 and a child was also born out of wedlock. The opposite party No. 2 had also filed a criminal case under Section 498-A of the IPC against the petitioner in the year 1993 itself. The fact stands admitted that the petitioner had performed second marriage in the year 1995. Under the aforesaid circumstances, the argument of the petitioner that the opposite party No. 2 had voluntarily left the petitioner and did not want to come back to him is not acceptable and does not fall under Section 125(4) of Cr.P.C. so as to deny maintenance to the legally wedded first wife and daughter of the petitioner.

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15. So far as the judgment relied upon by the petitioner reported in 1972 0 Supreme (Mad) 346 (Chamala Padmamma & Another vs. Chamala Narsi Reddy) decided on 06.07.1972 is concerned, the claim for maintenance was refused where the wife had voluntarily left the husband. The said judgment does not apply to the facts of this case. In the present case, the criminal case was also instituted by the opposite party No. 2 as back as in the year 1993 and the petitioner solemnization second marriage in 1995 during the subsistence of the 1^st marriage and there is nothing on record to suggest that the petitioner ever made any attempt to bring back his 1^st wife. The petitioner having performed 2^nd marriage soon after the opposite party left her matrimonial home there was no scope of reunion of the parties and there were sufficient reasons for the wife to live separately. Accordingly, the aforesaid judgment does not apply to the facts of the present case.

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16. So far as the judgment passed by the Hon’ble Bombay High Court in the case of Dattatray vs. Manisha & Others reported in 2015 0 Supreme (Bom) 1975 decided on 07.01.2015 is concerned, the claim for maintenance was rejected on the ground that the wife was leading an adulterous life and a decree for divorce was also granted on the ground of adultery. The said judgment does not apply to the present case as the petitioner never took a plea in the show cause that the opposite party No. 2 was living as an adulterous life and reliance

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on the letter and affidavit i.e. exhibit C and F do not lead to any such conclusion of adultery.

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17. Under the aforesaid facts and circumstances, this Court finds no perversity, illegality or material irregularity calling for interference in the impugned order of maintenance under revisional jurisdiction.

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18. Accordingly, this revision application is dismissed.

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19. Pending I.A., if any, is closed.

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20. Let a copy of this order be communicated to the court concerned through

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