| SooperKanoon Citation | sooperkanoon.com/521645 |
| Subject | Family |
| Court | Jharkhand High Court |
| Decided On | Oct-16-2006 |
| Judge | D.K. Sinha, J. |
| Reported in | [2006(4)JCR669(Jhr)] |
| Appellant | Nandlal Sharma |
| Respondent | State of Jharkhand and anr. |
D.K. Sinha, J.
1. The petitioner has preferred this petition under Section 19(4) of the Family Court Act for setting aside the judgment and order passed by the Principal Judge, Family Court, Dhanbad in Cr. Misc. No. 1/2006 on 23rd June, 2006 whereby and whereunder the application filed under Section 126 of the Code of Criminal Procedure by the petitioner for setting aside the exparte order dated 5.12.2005 allowing the maintenance @ Rs. 15,000/- per month under Section 125, Cr PC to the Opposite Party No. 2 (Sangeeta Sharma) was rejected.
2. The facts which emerge from the order passed by the Principal Judge, Dhanbad in M.P. Case No. 86/2005 delivered on 5th December, 2005 in a proceeding under Section 125 of the Criminal Procedure Code are that the Opposite Party No. 2 (Sangeeta Sharma) was married to the petitioner Nandlal Sharma on 9.3.2003 according to Hindu rites and rituals. The petitioner was working and is still working as Assistant Professor in the Computer Science and Engineering Department, M.B.A. Engineering College, J.M. Vyas University. Jodhpur in Rajasthan. After her marriage the O.P. No. 2 began to live at her matrimonial home in Bokaro. On the eve of her marriage a lots of money was spent by her father including cash of Rs. 2.50,000/- was given to the petitioner and finding it insufficient and upon being dissatisfied by the petitioner a sum of Rs. 1,80,000/- was given to the mother of the petitioner Smt. Kaushalaya Devi through bank draft.
3. It is alleged that the behaviour of the petitioner, his brother Kapildeo Sharma and their mother Smt. Kaushalaya Devi was not cordial with the O.P. No. 2. A Maruti 800 car was also given to the petitioner on the eve of the marriage to which the petitioner and others demanded as to why not SANTRO car was given to them and that the Maruti car which was registered in the name of the O.P. No. 2 should have been registered in the name of the petitioner. For such reason, the O.P. No. 2 was physically and mentally tortured. It is alleged that the O.P. No. 2 was locked in the room by raising a demand of Rs. 5,00,000/- to be brought from her parental home so that a flat may be purchased by the petitioner at Jodhpur. She was mercilessly assaulted, however, she was brought to her parental home at Digwadih on 29.5.2004 and there the petitioner put a specific demand of Rs. 5,00,000/- from her father as well as a SANTRO car. She was later on taken to Jodhpur by her mother with prior intimation but if is alleged that the petitioner became furious and her mother was abused in filthy language. It is further alleged that the petitioner finding that his demand were not fulfilled, he forcibly removed both the O.P. No. 2 and her mother on 9.7.2004 on the same day. Finding no way out both took shelter in the neighbour's house. However, the petitioner took back both of them after two days on the promise that he would not behave in such manner in future. In the night of 12.7.2004 it is alleged that the petitioner brutally assaulted the O.P. No. 2 and he kicked in her stomach though she was bearing pregnancy. Even his mother-in-law was not spared and she too was assaulted by him causing bleeding injury from her face and nose. Sangeeta Sharma and her mother both went to Mahila Police Station. Jodhpur in the same night and narrated the occurrence and their miseries. From there they went to Delhi where Sangeeta Sharma was examined by a lady Doctor and it was found to be a case of miscarriage. The O.P. No. 2 filed a petition under Section 125, Cr PC claiming a sum of Rs. 15,000/- per month as maintenance from the petitioner on the ground that the petitioner was drawing salary more than 30.000/- per month.
4. It is evident that the petitioner appeared in the proceeding under Section 125, Cr PC and filed a petition for time on 30.5.2005 for filing his show-cause and thereafter the matter was put up for reconciliation but the petitioner neither appeared nor any step was taken on his behalf and subsequently by the order dated 5.9.2005 the proceeding was fixed ex parte. The evidence was adduced on behalf of the O.P. No. 2 (Sangeeta Sharma) and the learned Principal Judge observed that Sangeeta Sharma did not have any source of income though she was M.Sc. in first class. It was further observed that out of the brutal behaviour, harassment and torture by her husband-petitioner, she was so much afraid that she was not in a position to do anything and that she became totally upset, not in a position to do anything and maintain herself and for such reason she was entitled to get maintenance. Learned Principal Judge awarded a sum Rs. 15,000/- per month as maintenance from the petitioner-husband Nandlal Sharma after finding that he was getting Rs. 30,000/- as his salary per month with stipulation therein to pay the same from the date of filing of the application under Section 125, Cr PC i.e. 6th April, 2005 and to pay the arrears in one lump sum. The proceeding was made ex parte in absence of the petitioner and accordingly judgment was delivered.
5. Learned Counsel for the petitioner submitted that as soon as the petitioner came to know about the M.P. Case No. 86/05 under Section 125, Cr PC filed by his wife, he immediately sent his Vakalatnama to Shri R.N. Chatterjee, Advocate of Dhanbad but said Shri R.N. Chatterjee did not take step in the said proceeding except filing a petition for time on 30.5.2005 for show-cause. Learned Counsel further submitted that the petitioners subsequently engaged the service of another lawyer Shri S.N. Mukherjee in both M.P. Case No. 86/05 (Proceeding under Section 125, Cr PC) as well as in, C.P. Case No. 1366/04 (Instituted under Section 498-A, IPC) and therefore, the petitioner has sufficient cause for not taking personal steps in the instant proceeding.
6. Advancing his argument, learned Counsel submitted that the Family Court has to take into consideration while awarding maintenance not only the needs of the applicant but the paying capacity as per his earnings, commitments towards other members of his family depending upon him. The monthly salary of the petitioner being the Assistant Professor in J.M. Vyas University, Jodhpur at the relevant time of judgment was Rs. 16,885/- after allowing deductions and his income tax was assessed on his gross salary to the tune of Rs. 2,19,793.00/- for the assessment year 2006-07 and a sum of Rs. 16,564/- was charged as the Income Tax. The petitioner has pleaded various accounts being deposited in his Pass-Book as the arrears, of his salary, maturity of fixed deposit which cannot be said to be regular monthly income of the petitioner to which the learned Principal Judge, Family Court failed to take into consideration.
7. From the impugned exhaustive judgment dated 23rd June, 2006 it is evident that though a number of witnesses were examined in a proceeding under Section 126, Cr PC on behalf of the parties and Shri R.N. Chatterjee was also examined on behalf of the O.P. No. 2 who admitted that he was engaged by the petitioner to appear in both the cases and file necessary show-cause, at the same time the petitioner admitted having sent Vakalatnama to him but no Vakalatnama was found on the record though a petition for time in the proceeding was proved as Exhibit A. Mr. R.N. Chatterjee did not deny that he was not in receipt of any Vakalatnama from the side of the petitioner but what prevented him to take steps in the proceeding is best known to him. Learned Principal Judge has accepted the statement of Shri R.N. Chatterjee based his judgment upon statements and not upon the matrix of the circumstances and the legal proposition. I have gone through the judgment passed by the Principal Judge, Family Court, Dhanbad in M.P. Case No. 86/05 in a proceeding under Section 125, Cr PC and without calculating the details of the salary account and the monthly income of the petitioner, awarded a sum of Rs. 15,000/- per month to the O.P. No. 2 being her maintenance from the petitioner with certain other stipulation regarding payment of arrears. Learned Court below has discussed the facts mostly related to the Complaint Case filed under Section 498-A, IPC against the petitioner and others but the Court is silent as to how he arrived at the conclusion that the monthly income of the petitioner was 30.000/-.
8. However, I find from the impugned judgment passed in a proceeding under Section 126 of the Code of Criminal Procedure that though in spite of the instruction of the petitioner Shri R.N. Chatterjee, learned Counsel only filed a petition for time for filing show-cause but he did neither file Vakalatnama nor take any step thereafter consequent to which the proceeding was fixed exparte as against the petitioner. Admittedly when the petitioner lost his faith upon Shri R.N. Chatterjee. Advocate he engaged Shri S.N. Mukherjee who obtained certified copy of the final order passed in the proceeding.
9. In the facts and circumstances. I find grounds to interfere with the impugned judgment passed by the Principal Judge. Family Court, Dhanbad in Cr. Misc, No. 1/2006 on 23rd June, 2006 and accordingly it is set aside by remanding the matter back to the Principal Judge. Family Court, Dhanbad to pass a reasoned order afresh, preferably within three months after according opportunity to the parties allowing the appropriate and adequate maintenance to the O.P. No. 2 Sangeeta Sharma in accordance with law.