Deepak Kumar Dubey vs State Of Jharkhand And Ors

Heard Mr. Sarju Prasad, learned counsel appearing on behalf of the petitioner.

Heard Mr. Shashi Kr. Verma, learned counsel appearing on behalf of the opposite party nos.2 to 4.

The present revision application has been filed for setting aside the order dated 20.06.2013 passed in M.P. Case No.106/06 by learned Principal Judge, Family Court Bokaro whereby the learned Judge has been pleased to order for payment of Rs.35,000/- per month as maintenance allowances to opposite party nos.2, 3 and 4 under the provisions of Section 125 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C).

The learned counsel for the opposite party nos.2, 3 and 4 at the outset has referred to order dated 12.02.2018 passed in Criminal Revision No.894 of 2013 to submit that the said criminal revision was filed by the present opposite party nos.2, 3 and 4 for enhancement of maintenance amount considering the fact that quantum of maintenance should have been fixed from the date of filing of the application and not from the date of the order and by the order dated 20.06.2013, the quantum of maintenance was directed to be paid from the date of the order. Learned counsel submits that this Court refused to interfere with the order of maintenance dated 20.06.2013 in Criminal Revision No.894 of 2013 by recording that the application for maintenance was allowed on proper assessment of income of the present petitioner (opposite party no.1 in the said case) and this Court also took into consideration that if the petition for maintenance was allowed right from the date of filing the application way back in the year 2006 then the petitioner (opposite party no.1 of the said case) would be saddled with a liability of almost 30 lakhs and accordingly, this Court declined to interfere with the order of maintenance and also observed that the petitioners (the opposite party nos.2 to 4 in the present case) could avail remedy under Section 127 Cr.P.C by making a necessary application before the learned court below for the purposes of enhancement of maintenance.

Learned counsel for the opposite party nos.2 to 4 has submitted that not only maintenance has been fixed after proper appreciation of the income of the petitioner, but the same has been fixed from the date of the order, and not from the date of application, pursuant to which the petitioner is highly benefited. He submits that there is no illegality or perversity calling for any interference in the order of maintenance.

Upon this, learned counsel for the petitioner submits that some of the opposite parties have attained majority by now and accordingly, the order of maintenance is required to be modified. However, during the course of hearing, he has not disputed that the petitioner has remedy under Section 127 of Cr.P.C before the learned court below itself on account of any subsequent development which has taken place after the order of maintenance. He is not in a position to say as to whether any application under Section 127 Cr.P.C has been filed before the learned court below or not.

Further, during the course of hearing, learned counsel for the petitioner has not been able to point out any perversity or illegality in the impugned order of maintenance. This Court also finds that neither the marriage nor the fact that two children were born out of marriage is disputed. It is also not in dispute that the petitioner is working in Coal India Limited.

Learned counsel for the State supports the submission made on behalf of the opposite party nos.2 to 4.

The brief facts of the case are that the opposite party no.2, for herself and on behalf of her minor sons i.e., opposite party nos.3 and 4, who were aged 7 years and 2 years respectively at the relevant point of time, had filed an application under Section 125 of Code of Criminal Procedure before the learned court below. The opposite party no.2 had asserted that she is the wife of the present petitioner and out of their wedlock, opposite party nos.3 and 4 were born. The marriage had taken place on 02.12.1997. It was alleged that after marriage, the petitioner started treating her with cruelty and she was ultimately driven out of her matrimonial house with her two sons in the month of April, 2006 and since then, she along with the sons are forced to live as dependent upon her father. She also asserted that she has no source of income and she was unable to maintain herself and her sons, and her father is also unable to maintain them. She asserted that in spite of repeated requests, the petitioner refused to maintain her and her children and, in such circumstances, the opposite party no.2 filed the petition for maintenance before the learned court below.

The opposite party no.2 examined four witnesses and examined herself as witness no.1 and fully supported her case. She had also stated that she has been staying in a rented house.

The opposite party no.2 had specifically deposed before the learned court below regarding the expenses required for maintenance and education of her children and also regarding her personal expenses and had also deposed that the take home salary of the petitioner was Rs.91,099/-. She was thoroughly cross-examined by the petitioner. The two sons of opposite party no.2, i.e., opposite party nos.3 and 4, were also examined as witnesses. The father of the opposite party no.2 was examined as witness no.4, who also fully supported the case for maintenance. A large number of documentary evidences were also exhibited including the documentary evidences regarding the income of the petitioner.

The petitioner on the other hand examined altogether three witnesses and he himself examined as witness no.2. The marriage between the petitioner and the opposite party no.2 was admitted and there was no dispute that the opposite party nos.3 and 4 were born out of wedlock.

The petitioner had also stated that he had suffered with serious accident in the month of April, 2005 and his in-laws did not take care to see him and during his treatment about Rs.15 lakhs were spent and subsequently, he further spent Rs.1,50,000/- for his treatment at Mumbai which he had to bear. He also submitted that the opposite party no.2 had stayed with him for a total period of 16 to 17 months during 1997 to 2005 and he made all efforts to maintain the matrimonial relationship. He has also referred to various litigations between the parties. He has further stated that his salary was only Rs.52,000/- to Rs.53,000/- per month and that if any amount is paid to the opposite party no.2, she will not spend it on opposite party nos.3 and 4, but will spend the entire amount upon herself. He has also stated in his cross-examination that he had transferred money of Rs.40,000/- to Rs.50,000/- in the account of his wife. The other witness on his behalf was D.W.1, Ajay Kumar Dubey, who is brother of the petitioner. He has also narrated about the various expenses and responsibilities which were required to be borne by the present petitioner. Witness no.3 is the driver of the petitioner, who has stated that on a number of occasions, the petitioner had visited Nagpur to meet his wife and children. Certain documentary evidences were also exhibited from the side of the defence witnesses.

The learned court below after considering the evidences, recorded that the relationship between the petitioner and the opposite party no.2 as husband and wife is not denied and it is also admitted fact that since April, 2006, the opposite no.2 is living separately from the petitioner along with opposite party nos.3 and 4 and both the children were studying in the school. Learned court below also recorded that the opposite party no.2 does not have any source of income whereas the petitioner is an employee of Coal India Limited and his salary is more than Rs.1,00,000/- and the petitioner has not been able to prove regarding any income of the opposite party no.2. So far as expenses incurred by the petitioner for the purposes of his treatment arising out of accident is concerned, the learned court below after considering the evidences held that the same were reimbursable. The learned court below also found that although the two children were admitted to Don Bosco Public School at the instance of the petitioner, but the same was done without the consent of the children due to which they fell sick at times as they could not stay without their mother. The learned court below recorded a finding that the take home salary of the petitioner was Rs.91,724/- per month. The learned court below also considered that the petitioner had certainly incurred some expenses in connection with his treatment and after considering the entire materials on record, the learned court below fixed the maintenance amount of Rs.10,000/- each for each child and Rs.15,000/- for the opposite party no.2 total being Rs.35,000/- and the amount was directed to be paid at the aforesaid rate from the 10th of next month.

This Court finds that the learned court below had scrutinized the evidences on record and recorded the relationship between the parties, the fact that the petitioner was an employee of Coal India Limited and was having take home salary of Rs.91,724/- per month, the petitioner had incurred certain expenses in his treatment and the fact that opposite party no.2 had no source of income. The learned court below fixed the monthly maintenance allowance of Rs.35,000/- per month out of total take home income of Rs.91,724/-.

It is important to note that learned court below did not fix the monthly allowance from the date of filing of the application for maintenance and consequently, the opposite party nos.2 to 4 had filed Criminal Revision No.894 of 2013, but the same was dismissed by this Court vide order dated 12.02.2018. Before this Court, a prayer was also made for enhancement of maintenance. This Court while refusing to entertain the petition has held as follows:

"It appears that there is no dispute with respect to the fact that the petitioner no.1 is the wife of the opposite party no.1. An application under Section 125 of Cr.P.C was preferred by the petitioner no.1 as well as on behalf of her children who were the two minor sons of the petitioner no.1. The said application was allowed on proper assessment of the income of the opposite party no.1 and an amount of Rs.35,000/- was awarded in favour of the petitioners. Although learned counsel for the petitioners has stressed much on the point that the amount of maintenance should be awarded from the date of application, but considering the quantum of maintenance awarded in favour of the petitioners making it applicable from 2006 would be an improbable burden on the opposite party no.1 as the same would lead to liability of payment of almost 30 lacs by the opposite party no.1. Although, no reason has been assigned with respect to the applicability of the order dated 20.06.2013, but only on such score, I am not inclined to remand the matter back as in view of what has been stated above, the quantum of maintenance has also to be taken into consideration while considering the applicability of the order under Section 125 of Cr.P.C. Submission advanced by the learned counsel for the petitioner on that score is negated. So far as the other contention of the learned counsel for the petitioner with respect to enhancement of maintenance, the petitioner has also a remedy under Section 127 of Cr.P.C by making necessary application before the learned court below.

Consequent to the discussions made hereinabove, I am not inclined to entertain this application which accordingly stands disposed of."

This Court also finds that so far as impugned order is concerned, the same is a well-reasoned order considering all the aspects of the matter and no perversity or illegality as such has been pointed out by the learned counsel appearing on behalf of the petitioner during the course of hearing.

So far as the plea of the petitioner that the opposite party nos.3 and 4 have become major as of now, is concerned, the same is certainly a subsequent development which is after passing of the impugned order and it is not in dispute that the learned court below has the power to consider every subsequent development under Section 127 of Code of Criminal Procedure.

In view of the aforesaid findings, no case for interference in the impugned order is made out. However, it is observed that on account of any subsequent developments, the petitioner may avail his remedy as permissible under law.