Siya Ram Singh vs State Of Jharkhand

Arun Kumar Rai, J

The instant revision application has been filed against the order dated 03.06.2022, passed by the Court of learned Additional Principal Judge, Additional Family Court No.II, Dhanbad in Original Maintenance Case No. 230 of 2019, filed under Section 125 Cr. P.C., whereby the petitioner/revisionist (husband herein) has been directed to pay a monthly maintenance of Rs. 30,000/- per month to his minor daughters i.e. O.P. No. 2 & 3 (herein) from the date of application and a sum of Rs.20,000/- as litigation cost to his wife (O.P. No.4 herein).

Briefly, factual matrix of the present case is that petitioner-husband got married with O.P. No.4-wife in the year 2007 and out of wedlock, two daughters being O.P. No.2 and 3 born at Dhanbad. After elapse of some time, in the year 2013, O.P. No.4-wife filed a complaint case being C.P. Case No. 966 of 2013 under Section 498 A of the Indian Penal Code against the petitioner-husband and others. Thereafter, settlement took place between husband and wife and the above said complaint case was disposed of accordingly.

It further transpires that again dispute arose between husband and wife, therefore, wife filed a divorce case being Original Suit No. 176 of 2017 under Section 13 (1) (ia) and (ib) of Hindu Marriage Act, 1955 before the learned Additional Principal Judge, Family Court, Dhanbad and same has been dismissed and at present, First Appeal is pending before High Court.

Subsequently, one maintenance case being Original Maintenance Case No. 230 of 2019 under Section 125 Cr. P.C. has also been filed by both the daughters i.e. O.P. No.2 and 3 through their mother i.e. O.P. No.4 before Family Court, Dhanbad.

In the above said maintenance case, it has been contended on behalf of O.P. No. 2 and 3 (daughters) that the petitioner (of present revision) being father is liable to pay monthly allowances of Rs.25,000/- to each child i.e. Rs. 50,000/- for maintenance and education of two minor child. It has also been contended in the maintenance petition that mother of O.P. No.2 and 3 is a working lady and earns Rs. 50,000/- per month which is not sufficient to look after the need of the minor children, who are studying in a well reputed School, namely, Carmel School, Opp. Circuit House at Dhanbad in Class VI and Class-II.

In  response  to  contentions  of  O.P.  No.4-wife,  petitioner-husband filed a reply and denied the allegation levelled against him and briefly it is stated by petitioner-husband that he is jobless on account of litigation by his wife and having no source of regular income and is not in a position to bear the expenses as claimed in maintenance petition.

O.P. No.4-wife has brought on record her own evidence on behalf of both the daughters in proceeding under Section 125 Cr. P.C., whereas petitioner-husband brought evidence of one Mukesh Kumar Singh on his behalf.

In the said proceeding, wife has admitted her income as Rs. 50,000/-whereas husband has admitted his income as Rs. 35,000/- per month in the affidavit filed before the Family Court.

After appreciating the material available on record, the learned Additional Principal Judge-II, Family Court, Dhanbad directed petitioner-husband to pay Rs.30,000/- per month for maintenance to both the minor daughters vide order dated 03.06.2022. Against the said order, petitioner-husband preferred present revision.

Petitioner in person appeared before this Court and has categorically submitted that, being father he is ready to bear the realistic educational expenses of both the daughters which comes around Rs.14,000/- and at the same time he also urged before this Court that while passing the impugned order dated 03.06.2022, learned Additional Principal Judge, Additional Family Court No.II, Dhanbad has not considered that petitioner-husband is unemployed and what is the actual education expenses of both the children and on the guess work, learned Additional Principal Judge, Additional Family Court No.II, Dhanbad awarded the maintenance amount to the tune of Rs.30,000/- per month for both the child, which is excessive/exorbitant on account of his financial capacity.

Petitioner by using arithmetic, demonstrated this Court by pointing out the school fee receipt and other break-ups of expenses of daughters and tried to convey this Court that amount of Rs. 7,000/- for each daughter is sufficient to meet out her educational and other needs. He also submitted that if the amount of maintenance which has been awarded by learned Family Court would not be reduced then that amount is certainly be used by his wife in initiating and pursuing false cases against him.

Further, the petitioner, in order to substantiate his contentions placed reliance upon the judgement rendered by the Hon’ble Apex Court in the case of Rajnesh versus Neha and another reported in (2021) 2 SCC 324 wherein direction has given to the parties to declare their income, assets, actual expenses of children etc. on the affidavit before the trial Court and on the basis of such affidavit, maintenance should be granted. But, no heed was paid to the affidavit filed by the petitioner-husband, which is in accordance to the dictum of Rajnesh (Supra), rather the learned Additional Family Court no.-II, Dhanbad saddled the petitioner with the hefty amount, to be paid as maintenance without considering the declaration of income, status and assets declared in the Affidavit by the husband.

Also, submission has been made that the quantum of maintenance granted by the learned Additional Family Court no.-II, Dhanbad is contrary to the dictum of Hon’ble Apex Court in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy reported in (2017) 14 SCC 200 whereby it has been held that one fourth of the income should be granted as maintenance.

It  has  been  further  contended  by  petitioner  that  considering  the pandemic COVID-19 period maintenance has to be awarded from date of order and not from the date of filing of an application as the learned Additional Principal Judge, Additional Family Court No.II, Dhanbad has not taken care of this fact that during pandemic COVID- 19 there was absolutely no income of the petitioner, as such he should not be asked to pay the maintenance amount during that period and on aforesaid premise, prayer has been made for setting aside the impugned order dated 03.06.2022.

Per contra, learned counsel for the O.P. No. 4-wife submitted before this Court that no interference is required in the order dated 03.06.2022 passed by learned Additional Principal Judge, Additional Family Court No.II, Dhanbad, as it is well reasoned order and has been passed after considering the material available on record. It has also been pointed out that plea of earning of Rs.35,000/- by petitioner-husband is improbable as he is running consultancy firms at Saraidhellla, Dhanbad (Jharkhand) as well as Rafiganj, Aurangabad (Bihar). Apart from that it is also been pointed out that he is also having landed property at Rafiganj, Aurangabad (Bihar).

Further submission has been made that two minor daughters of petitioner-husband are studying in Carmel School, Dhanbad which is well reputed School and Rs.30,000/- per month to both daughters as directed by the learned Additional Principal Judge, Additional Family Court No.II, Dhanbad is not at all excessive/exorbitant amount rather this is the minimum amount which is required for their decent life.

It has also been pointed out that petitioner-husband does not deserve any leniency from this Court on account of fact that till the date Rs.14 lacs (approx) is due towards him in view of order of maintenance for which execution proceeding has already been initiated, but petitioner-husband is not ready to pay the said amount, which clearly shows his concern about his daughters. As far as income of husband is concerned, it has been submitted that apart from consultancy firms, he has opened a flying bricks factory at Aurangabad (Bihar) and earning of Rs.35,000/- as stated by him in the affidavit is totally false and unbelievable.

The  O.P  no.4-wife  further  placed  reliance  upon  the  judgment rendered by the Hon’ble Apex in the case of Rajnesh versus Neha and another reported in (2021) 2 SCC 324 wherein guidelines have been laid down for maintenance to the minor children and disclosure of assets and liabilities for agrarian & non-agrarian assets in the maintenance proceeding.

Also, in the case of Raghubar Singh Vs State of Jharkhand [Cr. Revision No.- 10 of 2022] wherein Hon’ble Court cast liability upon the father to maintain both his minor children, despite wife being earning.

Further, reference has been made by O.P. no.4-wife to the judgment passed by the Hon’ble Karnataka High Court in the case of Srinivasa Gowda Vs H.J. Leelavathi reported in AIR 2008 (NOC) 1108 (KAR), whereby the Hon’ble Court imposed cost of Rs 3000/- on the husband on the occasion of failure to pay the maintenance amount, which has been directed by the Family Court.

Further, submission made by the O.P no.4-wife that if husband does not possess any source of income ipso facto doesn’t absolve himself of his moral duty to maintain his wife and children, as laid down in the case of Reema Salkan v. Sumer Singh Salkan, reported in (2019) 12 SCC 303.

After hearing both the sides and going through the material available on LCR, it transpires that in the present case husband and wife both are Technocrats and wife is an Architect who has herself admitted in the proceeding before learned Family Judge, Dhanbad that she is earning Rs.50,000/- per month and at present, residing at her paternal home along with both the daughters and incurring expenses of Rs.1,00,000/- in taking educational and other needs of both the daughters.

In proceeding under Section 125 Cr. P.C., O.P. No.4-wife brought on record deposition/testimony of petitioner-husband of divorce case being O.S. Case No. 176 of 2017, wherein petitioner-husband has admitted that he is doing private practice of Engineering in Saraidhella, Balajee Apartment, Dhanbad, Jharkhand and another office is also at Rafiganj, Aurangabad, Bihar. The above said testimony of petitioner-husband has been recorded in above Divorce Case on 15.02.2019.

It is true that no document qua the income of petitioner-husband has been brought on record by O.P. No.4-wife. But in her evidence before the learned Family Court O.P. No.4-wife deposed categorically that the income of petitioner-husband is about Rs. 2,00,000/- a month and this fact has not been categorically/specifically denied by the petitioner-husband by giving contrary suggestion at the time of cross-examining her.

From the reply of petitioner-husband, it is clear that he is B. Tech and P.G.D.M from I.I.M and rich work experience of Government, P.S.U and private corporate.

From perusal of the testimony of petitioner-husband in Divorce case being O.S. Case No. 176 of 2017 which has been brought on record in the proceeding under Section 125 Cr. P.C., reveals that on earlier occasion petitioner-husband has worked in NALCO, Electro Steel Company also.

Petitioner-husband stated at para 14, 15 and 16 of his affidavit dated 04.05.2022 which are being reproduced hereunder:

“14. That, after losing the regular employment in year 2015, and losing my work associated with wife in year 2017 by termination by wife, I tried to establish own consultancy firm at Dhanbad in year 2018. Due to various litigations, I could not concentrate the on this job and this endeavour is not fetching desired revenue.

That, I am earning Rs.35000 (Rs. Thirty five thousand only) per month from consultancy firm, however, it is expected to increase gradually in a years to come subject to favourable conditions.

That, no Income Tax Return (ITR) for last three years have been filed by me and no action has been taken by Income Tax Deptt for not filing the ITR.”

After perusing aforesaid para 14 of the affidavit, it is clear that consultancy firm is still being run by petitioner-husband.

As stated in preceding para that one Mr. Mukesh Kumar Singh has given evidence on behalf of petitioner-husband, who has stated in his testimony that since 2017, petitioner-husband is unemployed and doing nothing. This witness has also stated that petitioner-husband was having office at Balaji Apartment till 2017-18. In view of affidavit dated 04.05.2022 and evidence of petitioner-husband in divorce case, it can easily be concluded that testimony of witness Mukesh Kumar Singh cannot be relied.

Perusal of record transpires that learned Additional Principal Judge, Additional Family Court No. II, Dhanbad has assessed the income of petitioner-husband more than Rs.50,000/- a month. This Court is also of considered view that petitioner-husband is highly qualified being B.Tech and P.G.D.M from I.I.M and having rich work experience of Government, P.S.U and private corporate and having two consultancy firms, one at Saraidhella, Dhanbad (Jharkhand) and another at Rafiganj, Aurangabad (Bihar). It is difficult to believe that a person being highly qualified and having such a vast experience, started his own business leaving the job and is earning Rs.35,000/- per month. The assertion made by the petitioner that his income is only Rs.35,000/- per month cannot and should not be considered as a gospel truth by this Court in the absence of any documentary proof.

Lower Court Record further reveals that petitioner has filed an affidavit in compliance of dictum of Hon’ble Supreme Court in the case of Rajnesh versus Neha and another reported in (2021) 2 SCC 324 and after perusing the same it appears that petitioner-husband has not come with clean hand while stating the fact of his monthly income. It is required to be noted that apart from aforesaid affidavit, petitioner has not opened his mouth about his monthly income anywhere. It has also come on record that petitioner-husband is having land in his name at Rafiganj.

It transpires that mother of both the child has been cross examined at length on behalf of petitioner-husband, but even no contrary suggestion has been given to her regarding monthly income of petitioner-husband not to the tune of Rs.2,00,000/- (Rupees Two lacs). It is very strange that petitioner-husband himself has not got examined in the proceeding under Section 125 Cr. P.C. rather one Mukesh Kumar Singh has been examined as D.W-1 but nothing substantive has come from his mouth to substantiate the contention of petitioner-husband.

It is required to be noted that it has now become a matter of routine that as and when an application for maintenance is filed, non-applicant becomes poor displaying having no movable and immovable properties and running out of business or become unemployed in order to avoid payment of maintenance. Courts cannot and should not under these circumstances close their eyes when tricks are being played in a clever manner.

However, in the present revisional proceeding, petitioner-husband has conceded to the fact that children are entitled for maintenance from his father even in case of working mother but took a plea that educational and other expenses should be given by calculating their wants/needs.

At the time of argument, petitioner-husband came up with a chart which shows that he himself calculated the monthly expenses for each daughter like Rs.1782 (school fee), Rs.1500 (estimated cost of transportation), Rs. 667 (estimated cost of school dress), Rs. 667 (estimated cost of Books and stationery), Rs.1800 (estimated expense for private tuition/coaching) and Rs. 500/- (Misc. expenses other than fooding & lodging). The aforesaid break-ups of expenses, if added then it comes to Rs.6916/- and on aforesaid basis, petitioner-husband submitted that Rs.14,000/- (Rs.7,000/- for each daughter) is the realistic amount which could be directed to be given to both the daughters.

So far, the case of Rajnesh (supra) and Kalyan Dey Chowdhury (supra) relied by the petitioner-husband is concerned, factual matrix of present case is different as the petitioner-husband never disclosed his actual income and even not chosen to adduce his evidence as such wife lost an opportunity to bring material for his mouth regarding income by cross examining him.

This Court does not find any force in the aforesaid plea of petitioner-husband on two score. Firstly, aforesaid facts has not been brought on record either in show cause dated 07.01.2020 of the petitioner or evidence of D.W.1-Mukesh Kumar Singh and when no such plea has been taken in the proceeding before the learned Additional Principal Judge, Family Court No.-II, Dhanbad, how this revisional Court would entertain it.

Secondly, to quantify the maintenance so many factors like status of the parties, income, assets and liabilities educational expense, day today expenses for students etc. are to be taken care of by the Court and by exclusive strict application of arithmetics, it cannot be possible to quantify the same. Even the break-ups for expenses of daughters given by petitioner at this stage carrying estimated cost/expenses. More so, statutory obligation of giving maintenance in fiduciary relationship cannot be measured/quantified by applying only strict arithmetic rather it requires humane way of dealing with arithmetic.

This Court is of considered view that in the revisional jurisdiction this Court should not entertain the plea taken by petitioner-husband, that too when petitioner-husband was having an opportunity to bring the material on record in support of his contention but reason best known to him, he has chosen not to stand in the witness box, as a witness. An adverse inference of hiding of his income by the petitioner can be drawn as petitioner-husband avoided to stand in the witness box and thereby an opportunity to cross examine him regarding his income had been taken away from the hands of wife/children.

Needless to say that the law is well settled that a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife, minor child even the wife is earning and also educational expenses must be borne by the husband. Mere a plea by the husband that he does not possess any source of income ipso facto does not absolve his duty to maintain his wife and children. However, both the earning parents are duty bound to maintain their children.

In view of aforesaid discussions and especially considering the qualification rich experience of petitioner and also the fact of running of two engineering consultancy firms by him, this Court is of considered view that amount of maintenance Rs.30,000/- as awarded by learned Family court is most rational and reasonable one and no interference is required by this revisional Court.

So far date of payment of maintenance is concerned, petitioner-husband has taken a plea that there was pandemic COVID-19 prevailing in the year 2020-2021 and he was having no income during that period as such date of payment of maintenance should be from the date of order i.e. 03.06.2022. This Court is of view that during pandemic period also, educational and other expenses incurred for both the daughters and also in the light of dictum of Hon’ble Supreme Court in Rajnesh Vs. Neha and another no interference is required by this Court regarding the payment of maintenance from the date of filing of application as directed by learned Additional Family Court No. II, Dhanbad.

This Court is of considered view that the order dated 03.06.2022 passed in Original Maintenance Case No. 230 of 2019 by learned Principal Judge, Family Court No.-II, Dhanbad requires no interference by this Court. Accordingly, Cr. Revision No. 1241 of 2022 is hereby dismissed. Pending I.As., if any, are also closed.