Shusma Dayal vs State of Jharkhand and Others

Amitav Kumar Gupta, J.—This revision is directed against the order dated 21.03.2012 passed by the Principal Judge, Family Court, Hazaribagh in Maintenance Case No. 128/2005 whereby the application for granting of maintenance to the petitioner-wife and her minor daughter was disallowed.

Learned counsel for the petitioner has submitted that it would be evident from a perusal of para 21 of the impugned judgment that the learned court below has rejected the application for granting maintenance on a presumption that the petitioner is a graduate, as such she must have been doing some work and is able to maintain herself. It has been argued by the learned counsel that the O.P.-husband is still employed and he has also solemnised second marriage and in support of the same he has filed the photocopy of the statement of O.P. recorded under Section 313 and has submitted that the said document should be brought on record. It is argued that the order has been passed without appreciating the fact that none of the doctors who were treating the O.P.-husband have been examined to prove that he was undergoing intensive treatment for mental disorder. That the trial court also failed to appreciate that the petitioner had filed a case under section 498A IPC against the O.P.-husband and his family members and for this reason she was apprehensive of being physically harmed due to which she refused to reside in the house of the O.P.-husband. That the petitioner has a just ground for residing separately.

Learned counsel for the O.P.-husband has submitted that this Court under Section 397 Cr.P.C. can only look into the illegality or impropriety of the finding or order passed and in the present case the court below has passed the order on the basis of the evidence adduced by the parties. That the medical certificates and the prescriptions show that the petitioner was under mental depression due to which he was not gainfully employed, accordingly, the court below has held that the petitioner/O.P. is not in a position to pay the maintenance amount as he does not have any income or sufficient means to provide for his own maintenance. It has further been argued that the court below has also recorded a finding that during the re-conciliation proceeding the petitioner-wife was aggressive and had assaulted the O.P.-husband and the court below found that there was no sufficient cause or just ground for the petitioner to reside separately from her husband. Accordingly it held that petitioner-wife has deserted the O.P.-husband on her own accord. It is urged that there is no illegality, irregularity or impropriety in the finding of the learned court below.

At this stage learned counsel for the petitioner has produced the photocopy of the statement of O.P.-husband recorded under Section 313 Cr.P.C. and submitted that O.P.-husband has solemnised second marriage and is gainfully employed. It is urged that the impugned order be set aside and the matter be remanded to the court below and liberty may be given to the petitioner to bring the above facts on record.

Heard. On perusal of the impugned order it is evident that the court below has recorded that the O.P. being a graduate must be doing some job and maintaining herself and her minor daughter. Apparently, such a finding is on presumption without any evidence on record to draw such an inference or conclusion. Learned counsel for the O.P. has produced the statement of the petitioner-husband recorded under Section 313 Cr.P.C. admitting solemnization of a second marriage and his gainful employment. The document can be considered and appreciated when the evidence is laid in the court below. The parties are at liberty to lead their evidence in the court below. It also transpires that the court below has not examined the O.P.-husband, as a witness, to ascertain the fact whether he is of a sound mental health or not.

In the attending facts and circumstances, order dated 21.03.2012 is set aside and the matter is remitted to the court below. The court below, after noticing the parties and giving an opportunity of hearing to the parties, shall pass necessary order on merit without being prejudiced by any observations made in this order. The proceeding should be concluded at the earliest preferably by December, 2015 and both the parties shall cooperate in expeditious disposal of the case.

With the aforesaid observation and direction the revision stands disposed of.