Anand Sona Pawaria vs Surudhani Soren

Subhash Chand, J

Heard learned counsel for the petitioner and learned counsel for the Opposite Party.

The present criminal revision has been preferred against the order dated 15th December, 2021 passed by the learned Principal Judge, Family Court, Dumka in Original Maintenance Case No.80 of 2018, whereby and whereunder the petitioner has been directed to pay Rs.8,000 per month to the petitioner as maintenance allowance from the date of institution of the petition under Section 125 Cr.P.C. i.e., 28th November, 2018. The petitioner was further directed to pay the arrears of maintenance amount in 12 equal installments per month since the date of the order.

The brief facts leading to this criminal revision are that the Opposite Party – Surudhani Soren had filed a petition under Section 125 Cr.P.C. against the petitioner – Anand Sona Pawaria with these averments that the she was married with the petitioner in the year 1977 according to Santhal customs and usage in the locality. The Opposite Party went to her matrimonial house and the marriage was conjugated and the conjugal life were observed happily for 12 years. Both parties are governed by the traditional Santhal customary law. No issue was born out of the wedlock. The petitioner left the Opposite Party in his village house at Jamjori and went to his place of service and now the petitioner has been residing at Saraiyahat Bazar. The petitioner was posted at Gram Panchayat of Chorkheda and Thekcha Gongha Panchayat as a Village Level Worker in Jarmundi Block. The petitioner maintained the Opposite Party till the year 1998, thereafter, he began to neglect the Opposite Party and even there was no talking terms between them. The Opposite Party has been residing in the very house of the petitioner for more than two years but he did not look after her or maintained her. The Opposite party has no source of income and is unable to maintain herself. A panchayat was also called but the petitioner did not face the panchayat. The Opposite Party is the legally wedded wife of the petitioner and it is his duty to maintain her. The petitioner is a government servant and he is having handsome income from the salary not less than Rs.40,000/- per month. Accordingly, prayed the amount of Rs.20,000/- as maintenance amount from the petitioner.

On behalf of the petitioner, the written statement was filed in which he admitted the marriage with the Opposite Party in the year 1977 as per Santhal customary law. The petitioner was a government employee and he had to reside at the place of posting and this is the reason he was not residing at his native village. The petitioner never neglected the Opposite Party as stated. This petition has been filed on the basis of the wrong averments. The entire property and agricultural produce was in possession of the Opposite Party. It is wrong to say that the petitioner is getting pension of Rs.40,000/- per month. The petitioner is suffering from various disease and the medical prescription are being annexed herewith but still the petitioner is ready to keep the Opposite with all respect. The petitioner has retired and till date he has not received the pension.

On behalf of the Opposite Party/wife in oral evidence examined P.W.-1 Siman Pawaria, who is the cousin brother of the petitioner/respondent, P.W.-2 Ramesh Soren, P.W.-3 Balak Hembrom, P.W.-4 Chhota Bishu Pawaria and P.W.-5 Surudhani Soren (the Opposite Party/wife).

On behalf of the petitioner/husband in oral evidence examined R.W.-1 Dulal Kumar Mandal, R.W.-2 Lukhiram Pawaria, R.W.-3 Okindo Hembrom and R.W.-4 Anand Sona Pawaria (the petitioner himself).

On behalf of the Opposite Party/wife, no documentary evidence was adduced.

On behalf of the petitioner/husband in documentary evidence adduced photocopy of four medical prescriptions of his treatment pertaining to ailment which were marked X, X/1, Y and X/2 for identification. Photocopy of Pension order of Anand Sona Pawaria issued by the Accountant General, Jharkhand, Ranchi was marked Ext. A and amended pension paper is marked Ext.B.

The learned Principal Judge, Family Court, Dumka after hearing the rival submissions of the learned counsel for the parties allowed the petition of the Opposite Party/wife vide judgment dated 15th December, 2021, wherein the Petitioner/husband was directed to pay Rs.8,000/- per month as maintenance from the date of presentation of the application i.e., 28th November, 2018. It was also further directed that the arrears of the maintenance amount was to be deposited by the petitioner/husband in 12 equal installments per month from the date of the judgment.

The petitioner/husband being aggrieved with the impugned judgment, preferred this criminal revision on the grounds that the impugned order passed by the learned court below is bad in the eyes of law and there was no willful neglect on the part of the petitioner/ husband in maintaining his wife. The learned Principal Judge, Family Court has failed to appreciate this fact that no compliant was ever filed prior to 2018 while the marriage was solemnized in the year 1977. The learned court below has failed to appreciate the Ext.A in which the actual pension which the petitioner is getting is Rs.22,400/- per month. The quantum of the maintenance is exorbitant which the petitioner/husband is unable to pay. If the impugned judgment is not set aside, it would occasion complete miscarriage of justice.

I have heard the learned counsel for the parties and perused the materials available on record as well as the finding recorded by the learned Family Court in the impugned judgment.

In order to decide the legality and propriety of the impugned judgment passed by the learned Principal Judge, Family Court, Dumka, it would be pertinent here to reproduce the evidence on behalf of both the parties.

On behalf of the Opposite Party/wife altogether five witnesses were examined. P.W.-1 is Siman Pawaria. He in his examination-in-chief stated that Anand Sona Pawaria was married with Anand Sona Pawaria. It is further stated that since November, 2018 Surudhani came to her parental house and is residing there till now and the petitioner/husband is not taking care of her. Anand Sona Pawaria has also performed the second marriage and had two children out of the second’s marriage wedlock. He is getting salary of Rs.50,000/- per month. This witness in his cross-examination has stated that the petitioner (wife) used to look after the agricultural land and she was all in all of all the agricultural crop. Anand Sona Pawaria is in service or retired he is not aware but he has attained the age of superannuation.

13.1 P.W.-2 Ramesh Soren in his examination-in-chief says the petitioner and the Opposite party after marriage lived as husband and wife at village Jamjori but since November, 2018 she is not residing there and now she is residing in Haldidihi village. Anand Sona Pawarai was working as Village Level Worker but he has no knowledge that where he was posted. Surudhani has left the matrimonial house reason being that she was not maintained there. In cross-examination, this witness says that he is not aware whether Anand Sona Pawaria had retired.

13.2 P.W.-3 Balak Hembrom in his examination-chief stated that after marriage Surudhani Soren and Anand Sona Pawaria lived happily for 12 years. Thereafter, the petitioner/husband has married with another lady. In cross-examination, this witness says that he is not aware whether Anand Sona Pawaria has been suffering from any disease.

13.3 P.W.-4 Chhotabishu Pawaria in his examination-in-chief says that out of wedlock of Surudhani Soren and Anand Sona Pawaria no issue was born, so he married with another lady. Her husband did not maintain her so she filed this petition. In cross-examination, this witness stated that he is not aware whether Anand Sona Pawaria has retired or is in service.

13.4 P.W.-5 Surudhani Soren, the wife herself in her examination-in-chief supported the averments made in the maintenance petition and in cross-examination she stated that after marriage her husband used to come to the village. The agriculture work was being done on Batai by the labourer and from the agricultural produce she could not maintain herself. Anand Sona Pawaria had solemnized second marriage and he had retired recently or not she is not aware. He does not take care of her and out of second marriage he had five children.

On behalf of the petitioner/respondent (husband) examined R.W.-1 Dulal Kumar Mandal. In his examination-in-chief, this witness stated that the marriage was solemnized in the year 1977 according to Santhal customs and usage. When no issue was born out of the wedlock, the petitioner/husband solemnized second marriage in the year 1997 with the consent of his former wife. Out of wedlock of the second wife Daisy Hansda and the respondent there are five issues. The respondent-husband had kept the petitioner-wife with all dignity and the respondent had retired. It was told by Anand Sona Pawaria to him that his former wife was creating pressure upon him for second marriage.

14.1 R.W.-2 Lukhiram Pawaria also stated that the respondent-husband had retired. He remains ill and his second marriage was solemnized with the consent of the former wife.

14.2 R.W.-3 Okindo Hembrom also stated that marriage of the Opposite Party-wife with the respondent-husband was solemnized in the year 1977 and there was no issue from the first wife, so the second marriage was solemnized with Daisy Hansda from whom the five children were born. The agriculture work was being done by the Opposite Party-wife under her own supervision and the petitioner/husband has retired.

14.3 R.W.-4 Anand Sona Pawaria is the husband of the Opposite Party and has stated that he was married with Surudhani Soren in the year 1977 according to Santhal customs. No issue was out of the first marriage and his first wife had created pressure upon him for the second marriage and with her consent he married with Daisy Hansda in the year 1997. Out of the second marriage, there are five children. He was Village Level Worker and he resided at the place of posting. The agricultural work was looked after by his first wife. He also kept his wife with all dignity and love. He has retired from the post of Village Level Worker and till date he is not getting any pension.

In view of the averments made in the petition and also the written statement the issues between the parties are as follows :

i. whether the husband/petitioner herein had neglected to maintain the wife/Opposite Party herein ?

ii. What amount the Opposite Party/wife is entitled to get as maintenance ?

So far as the Issue No.I is concerned, admittedly the marriage was solemnized in the year 1977. As per averments made in the maintenance application, the petitioner/husband maintained the Opposite Party till the year 1998 and thereafter he began to neglect her. The Opposite Party Surudhani Soren in her cross-examination has stated that after second marriage by her husband in the year 1997 her husband did not take care of her. Whenever she fell ill, the neighbours used to look after her. She left the in-law’s house in November, 2018 and came to her parental house. She further stated that the second marriage was not done with her consent. It is also correct to say even after second marriage occasionally her husband came to her house and look after the agricultural work. Whatever the income was from the agriculture, the same was given to the labour and she could not maintain herself. The ultimate control of the agriculture produce was of her husband and not of her. She was not aware whether her husband has retired.

In regard to neglecting by the petitioner/husband to the Opposite Party/wife, P.W.-1 Siman Pawaria, P.W.-2 Ramesh Soren, P.W.-3 Balak Hembrom and P.W.-4 Chhotabishu Pawaria also gave the same kind of statements that after second marriage, the Opposite Party/wife was not maintained by her husband and she could not maintain herself from the agricultural income.

To the contrary the petitioner/husband – Anand Sona Pawaria, R.W.-4 had stated that he never neglected his wife from maintaining her. Since he was in service he remained at several places of posting and with the consent of his first wife he married with Daisy Hansda in the year 1997 and up to November, 2018 the Opposite Party/wife remained in matrimonial house. She was maintained by him and whatever the income was from the agriculture the same was utilized by his first wife and whenever he had come to his house, he used to know in regard to welfare of his wife.

17.1 The respondent’s witnesses, namely, Dulal Kumar Mandal, R.W.-1, Lukhiram Pawaria, R.W.-2 and Okindo Hembrom, R.W.-3 also gave the same kind of statements that the Opposite Party/wife lived in her matrimonial house till the year 2018 and she used to maintain herself from the agricultural produce and her husband never neglected her.

The Hon’ble Apex Court in the case of Rajathi vs. C. Ganesan reported in (1999) 6 SCC 326 held that the burden of proof lies upon the husband that he did not neglect the wife or refuse to maintain wife.

From the evidence adduced on behalf of both the parties, it is found that after solemnization of marriage in the year 1977, the husband of the petitioner got second marriage with Daisy Hansda in the year 1997 and after solemnization of second marriage the five children were born out of wedlock of his second wife and the petitioner—Anand Sona Pawaria. The petitioner has admitted this fact that he remained at several place of posting, so he occasionally came to his ancestral house, where his former wife was residing. All the witnesses adduced on the Opposite Party stated that there was no one to look after her, so whenever she fell ill it was the neighbour who looked after her. As such it is proved that the petitioner—Anand Sona Pawaria had neglected his wife after solemnization of second marriage. Though the Opposite Party resided in her in-law’s till 2018 and she maintained herself from the agriculture produce, yet after 2018 the whole control and supervision was taken by the petitioner/husband in his hand and it was the very reason that the Opposite Party/wife has left the in-law’s house and went to her parental house in the year 2018. Accordingly Issue No.I is decided in favour of wife and against the husband.

So far as the Issue No.II is concerned, the evidence adduced on behalf of the petitioner—Anand Sona Pawaria, it appears that he had retired from the post of VLW in the year 2019. He could not get the pension. The petitioner and his all witnesses have stated that they are not aware whether Anand Sona Pawaria has retired or not; but from the evidence adduced on behalf of the husband, it is proved that he had retired from the post of VLW. From the amended Pension letter which is filed on behalf of the petitioner it is found that Anand Sona Pawaria got appointment on 12th January, 1996 and retired on 28th February, 2019. The total period of his service is 24 years 1 month and 16 days. The last salary on the date of retirement of the petitioner was Rs.44,800/- and name of members in his family are shown 1. Smt. Surudhani Soren, 2.Daisy Hansda and five children. The pension was sanctioned to the petitioner on 20th March, 2021 which is the date of issuance of pension order and the amount of his pension is shown as Rs.22,400/- per month. In this pension order the name of Surudhani Soren and three children are shown. Therefore, in view of pension order, the income of petitioner/husband after his retirement is Rs.22,400/-and this pension order was issued to him on 20th March, 2021. Prior to this pension order and after retirement on 28th February, 2019, there was no source of income of the petitioner except the agricultural land. After his retirement on 28th February, 2019, the pension of Rs.22,400/- per month was payable to him since 1st March, 2019, therefore, in view of the aforesaid documents, the income of the petitioner from the pension is assessed to be Rs.22,400/- per month. The fact of income being in personal and particular knowledge of the husband, the burden of proof under Section 106 of the Evidence Act is discharged by the husband.

So far as the liability of petitioner/husband is concerned, admittedly he solemnized second marriage with Daisy Hansda and out of wedlock he had five children. As per Santhal customs there is no bar of second marriage. From the evidence adduced on behalf of both the parties, it is also found that the Opposite Party/wife was also consenting party in getting married by the petitioner with another lady for the purpose of issue. Nonetheless being the government servant he cannot marry with second wife in subsistence of first wife.

Therefore keeping in view the liabilities of the petitioner and his income from the pension amounting Rs.22,400/- more than 1/5th of the pension amount of petitioner is awarded to the Opposite Party/wife as maintenance i.e., approx Rs.5,000/- per month. The learned Family Court while fixing the quantum of maintenance as Rs.8,000/- per month has assessed the pension of the petitioner to be Rs.44,800/-; while the said amount was the last salary which he was getting at the time of retirement. As per pension order, the pension is shown Rs.22,400/- per month. Accordingly, the Issue No.II is decided hereinabove.

In view of analysis of the oral and documentary evidence, the quantum of the maintenance is modified from Rs.8,000/- to Rs.5,000/- per month from the date of filing of the maintenance application by the Opposite Party/wife.

In view of the conclusions drawn from Issue Nos. I & II, the present criminal revision is hereby partly allowed, so far as it relates to quantum of maintenance. Accordingly the order dated 15th December, 2021 passed by the learned Principal Judge, Family Court, Dumka in Original Maintenance Case No.80 of 2018 is modified to the extent of quantum from Rs.8,000/- per month to Rs.5,000/- per month. The arrears of maintenance amount shall be payable in 12 equal installment per month from the date of filing of maintenance application.

It is made clear that if any amount which has been paid earlier by the petitioner/husband, the same shall be adjusted accordingly.

Let a copy of this order be communicated to the court concerned through ‘FAX’.