IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.512 of 2023
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Amit Kumar Kachhap, son of late Maghi Kachhap, resident of Qrt. No. K-2/
196, Tube Colony Baridih, P.O. Baridih, P.S. Sidhgora, Town Jamshedpur,
District Singhbhum East ...... …... Petitioner
Versus
Sangeeta Toppo, wife of Amit Kumar Kachhap, Daughter of Shiv Shankar
Oraon, at present residing at Village Nagri, P.O. Bukru, P.S. Kanke, District
Ranchi ….. …. Opposite Party
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CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Vipul Poddar, Advocate
For the State : Mr. Anil Kumar Sinha, Advocate
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C.A.V. on: 04/01/2024 Pronounced on:02/02/2024
1. This Criminal Revision has been preferred against the impugned
judgment dated 20.04.2023 passed by the learned Principal Judge, Family
Court, Ranchi in Original Maintenance Case No.241 of 2017 filed under
Section 125 of the Code of Criminal Procedure, whereby the learned Court
below had allowed the maintenance application and directed the petitioner to
pay maintenance amount of Rs.15,000/- per month to the opposite party
from the date of application i.e. 30.10.2017.
2. The brief facts leading to this Criminal Revision are that the
maintenance application under Section 125 of the Code of Criminal
Procedure was filed on behalf of the opposite party-wife, namely, Sangeeta
Toppo against her husband Amit Kumar Kachhap with these allegations that
she was married with Amit Kumar Kachhap on 01.12.2014 at Argora,
Ranchi according to their custom, rites, ritual and usages as both the
parties are belonging to Sarna community. After marriage, the opposite
party-wife was taken to her in-law’s house at Baridih and from the very next
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day the demand of car, fridge, LED TV etc. was began to raise. The
petitioner-husband and his family members also began to create pressure to
fulfill the said demand. The petitioner-husband began to avoid the opposite
party-wife manhandled her and neglected her on petty matters. The
petitioner-husband having administered himself with alcohol and used to
abuse the opposite party-wife and also manhandled her. The petitioner-
husband is also having relation with one lady Poonam Kumari, who was
introduced by him as the friend of his sister Rashmi Kachhap but, later on,
the opposite party-wife came to know that the illicit relationship developed
between her husband and lady Poonam Kumari and he has been depriving
the opposite party-wife of the love, care and protection and maintenance as
well, in such circumstances, the opposite party-wife was compelled to live in
misery. The opposite party-wife is unemployed tribal lady. The petitioner-
husband is employeed in Indian Railway and works as a Loco Pilot, he is
getting salary of Rs.60,000/- per month. He also runs business of Marriage
Hall at Baradih, from which, he also gets income of Rs.1,00,000/- per
month. He has also 12 shops, which are given on rent and, from which, he
earns Rs.60,000/- per month. In view of the above, prayed to allow the
maintenance amount of Rs.50,000/- per month.
3. On behalf of the petitioner-husband, the reply of show cause was
filed, in which, he stated that indeed both parties belong to the scheduled
tribe being Oraon community and the provision of Hindu Marriage Act,
1955 is not applicable. Both parties are governed by the custom and
usages prevalent in their community. After solemnization of marriage, the
applicant was taken to Jamshedpur to the matrimonial house, where she
stayed for one week but on the request of mausa and mausi of the applicant
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she again went to Ranchi at the hosue of her mausa and mausi, who were
acting as guardian of her. The applicant is post-graduate. The mausa and
mausi of the applicant are instrumentally intervening in her day-to-day
affair. On 23.02.2015, she was taken by her mausa and mausi to Ranchi on
the assurance that she would come back within 15 days, but to the utter
surprise of the petitioner husband, she neither came to the matrimonial house
nor agreed to come back in spite of the repeated request made by the
husband. The applicant, who had conceived during her marriage at the
matrimonial house had also got abortion without consent taken by the
opposite party and, later on, the petitioner-husband came to know that she
got the pregnancy terminated without his consent during her stay at the
house of her mausa and mausi. The mausa and mausi of the applicant were
also interested for the second marriage of the opposite party as their custom
permits for the same. The entire ornament of the petitioner are with the
opposite party. It was applicant, who had left the society of the husband
without any reasonable cause. The petitioner-husband waited for more than
two years and divorced the applicant on 17.07.2017 and left her to marry
according to her choice. As such, the applicant is not entitled to maintenance
amount. In view of the above, prayed to dismiss the maintenance
application.
4. On behalf of the applicant in oral evidence examined A.W.-1,
Sangeeta Toppo and A.W.-2, Gouri Devi. In documentary evidence on
behalf of the applicant filed the photocopy of the anticipatory bail
application and the order dated 19.12.2018 passed in Complaint Case
No.202 of 2017 filed under Section 498-A, 420, 406, 315, 506/34 of the
Indian Penal code and copy of the FIR under Section 498-A, 420, 406, 315,
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506/34 of the Indian Penal Code.
5. On behalf of the petitioner-husband examined O.P.W.-1, Poonam
Kumari; O.P.W.-2, Amit Kumar Kachhap and; O.P.W.-3, Kisto
Kachhap. In documentary evidence affidavit was also filed in regard to the
assets and liability in compliance of the judgment passed by the Hon’ble
Apex Court in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324.
6. The learned Trial Court after hearing the rival submissions of both
parties, passed the impugned judgment on 20.04.2023 and allowed the
maintenance application directed the petitioner Amit Kumar Kachhap to pay
maintenance amount of Rs.15,000/- per month to the opposite party-wife.
7. Aggrieved from the impugned judgment, this Criminal Revision has
been directed on behalf of the petitioner husband on the ground that the
impugned order passed by the learned Court below is bad in the eyes of law
as the same is based on erroneous findings. The learned trial Court has not
applied the judicial mind while appreciating the evidence on record and has
come to the wrong conclusion on the basis of wrong appreciation of the
evidence. The learned Court below has not gone through the declaration
made by both the parties in their affidavit in compliance of the judgment
passed by the Hon’ble Apex Court in the case of Rajnesh Vs. Neha (supra).
The learned Court below did not appreciate the evidence that the applicant
had left the company of the petitioner husband without any reasonable
cause, as such, she was not entitled to maintenance in view of Section 125(4)
of the Code of Criminal Procedure. In view of the above, prayed to allow
this Criminal Revision and set aside the impugned order.
8. I have heard the learned counsel for the petitioner and learned counsel
for the opposite party and perused the materials available on record.
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9. For the disposal of this Criminal Revision, following points of
determination is being framed:
“(i) Whether the opposite party-wife has left the society of
her husband without any reasonable cause, if so its effect?
(ii) Whether the quantum of maintenance is
disproportionate in view of the income and assets of the
petitioner-husband?”
10. On the first point of determination, on behalf of the opposite party-
wife has examined A.W.-1, Sangeeta Toppo herself, in her examination-in-
chief, says that she was married with Amit Kumar Kachhap on 01.12.2014.
The demand of LED TV and vehicle was made and for non-fulfillment of
the same, she was subjected to cruelty and under that circumstances, she left
the matrimonial house. Her husband is also having illicit relation with one
lady, namely, Poonam Kumari, since then, she has been living at her parental
house. In cross-examination, this witness says that she lived in her
matrimonial house for a total period of one month. During that period,
she did not file any complaint in regard to the torture made for any
demand of dowry even no panchayat was held. She does not want to
reside with her husband because he has illicit relation with another
woman. Her husband has also filed a case against her in regard to the theft,
in which, she got the anticipatory bail. She was never conceived. No
treatment to that effect was ever given to her and no abortion was done by
her. Now she does not want to reside with her husband since he has filed two
cases against her one for theft and another for divorce. All her jewelry was
left by her to the matrimonial house.
10.1 A.W.-2, Gouri Devi, who is the mother of the applicant, in her
examination-in-chief, says that her daughter was married on 01.12.2014 with
Amit Kachhap at Argora, Ranchi. After one month of marriage, her daughter
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was subjected to cruelty for demand of dowry. In cross-examination, this
witness says that now her daughter resides with her. She does not want to re-
marry to her daughter. It is wrong to say that her daughter gone to re-marry.
11. On behalf of the opposite party in oral evidence examined O.P.W.-1,
Poonam Kumari. This witness, in her examination-in-chief says that Amit
Kumar Kachhap is her younger brother. The sister of Amit Kumar
Kachhap is her friend. The wife of Amit Kumar Kachhap had left the in-
law’s house on account of her own will. She had made allegation to her in
regard to the illicit relation, which is wrong. It is nothing but the product
of her dirty mind. She has also filed a suit for defamation against her, in
which, she has not appeared therein, the photocopy of said case is
Exhibit-A. Sangeeta Toppo was also pregnant and she underwent the
treatment of Dr. Indu Chouhan. She said that Amit Kachhap wanted to
bring her back to the matrimonial house but she does not want to came
back. In cross-examination, this witness says that her house is at the
distance of 16 kilometers from the house of Amit Kumar Kachhap. She
occasionally come to the house of Amit Kachhap. It is wrong to say that she
had illicit relation with Amit Kumar Kachhap and with this reason Sangeeta
Toppo left the matrimonial house.
11.1 O.P.W.-2, Amit Kumar Kachhap, in his examination-in-chief, says
that his wife resided with him in the matrimonial house for one month. She
also became pregnant and underwent treatment of Dr. Indu Chouhan and
the pregnancy was found ‘positive’. On 22.02.2015, she went along with
her guardian and when she came back he know that she got the
pregnancy terminated. The prescription of the treatment was given by
Dr. Indu Chouhan is Exhibit-Y/1. He wanted to bring back his wife but
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his wife did not want to come and she each time insulted him. He has
also filed a Criminal Case against his wife in regard to the jewelry, which
she had taken with her from the matrimonial house. In this case, six times
mediation was scheduled to be held and each time his wife made
demand of Rs.75 lakhs as life time alimony and refused to reside with
him. He has given notice to his wife for divorce and the case for divorce was
filed bearing Case No.01 of 2018, which is also pending. This allegation of
his wife is quite false and wrong that he has illicit relation with Poonam
Kumari. He is still willing to bring back his wife with him. In cross-
examination, this witness says that he has filed the criminal case against his
wife in Jamshedpur and also divorce petition No.1 of 2018 in Jamshedpur,
the same is transferred to Ranchi and he is not aware whether the suit has
been dismissed. It is wrong to say that he made any demand of dowry and he
used to manhandle her after having being intoxicant. It is also wrong to say
that he has illicit relation with one Poonam Kumari and the same was seen
by the applicant herself. Socially, he has given divorce to his wife but no
divorce has been decreed by any competent Court. Still, he wants to
keep his wife with him.
11.2 O.P.W.-3, Kishto Kachhap, in his examination-in-chief, says that he
is resident of Ranchi. He is familiar with both the parties. He is cousin
brother of Amit Kachhap. Sangeeta Toppo has got remarried, with whom,
he is not aware. In Oraon Community, a woman or a man cannot re-marry
without any social divorce. Sangeeta Toppo resides with her mother. In
cross-examination, this witness says that it is wrong to say that being the
cousin brother of Amit Kachhap, he is giving false evidence.
12. On behalf of the applicant Sangeeta Toppo P.W.-1, in her deposition
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statement, stated that she lived in her matrimonial house for one month.
Demand of dowry was made and for non-fulfillment of the same, she was
subjected to cruelty. Her husband also had the illicit relation with one
Poonam Kumari, therefore, she left the matrimonial house and residing at
her parental house. She does not want to reside with her husband in any
condition. She does not consider him to be her husband and she cannot
live with him even for a single day. During mediation, she made demand of
Rs.75 lakhs from him.
13. P.W.-2, Gouri Devi, who is the mother of the applicant also says that
her daughter lived in her matrimonial house well for one month, thereafter,
the members of in-law’s house began to torture her. They used to say that
she is having bad character. Her daughter is residing with her. She denies
this suggestion that her daughter has re-married.
14. To the contrary, on behalf of the petitioner, in evidence examined
O.P.W.-1, Poonam Devi. This witness has stated that Amit Kumar
Kachhap is her younger brother. He played in her lap in his childhood.
She is friend of the sister of Amit Kumar Kachhap. The wife of Amit
Kumar Kachhap had made false allegation in regard to the illicit
relation with Amit Kumar Kachhap, for the same, she has filed the case
for defamation and copy of the same is annexed as Annexure-A. During
cross-examination, on behalf of the applicant no contrary conclusion could
be drawn from this witness. O.P.W.-2, Amit Kumar Kachhap himself says
that his wife left the matrimonial house of her own will. She left her
matrimonial home only after one month. She also became pregnant. She
underwent treatment of Dr. Indu Chouhan, in which, her pregnancy was
found ‘positive’ and she went along with her guardian mausa and mausi and
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got the pregnancy terminated without his consent. He files the prescription
of Dr. Indu Chouhan, which is marked as Exhibit-Y/1. He also says that six
times mediation took place but his wife refused to live with him and she
made demand of Rs.75 lakhs. He has still ready to bring her back with him
even if he has socially divorced her and divorce suit has also filed by him
but his wife has left his society without any reasonable cause. From the
very prescription of Dr. Indu Chouhan, which has been filed on behalf
of the petitioner-husband, it is found that it is dated 21.02.2015, in
which, Sangeeta Kachhap, wife of Amit Kumar Kachhap, 27 years old
resident of Baradih is shown patient and she is also shown pregnant of
two and half months. The doctor has also prescribed her certain tablets
on account of her general bodyache. This prescription issued by Dr.
Indu Chouhan, in which, the pregnancy is also shown ‘positive’ belies
the statement of applicant Sangeeta Toppo, who has flatly refused that
she never became pregnant. She never underwent treatment of Dr. Indu
Chouhan and pregnancy was never terminated.
15. O.P.W.-3, Kishto Kachhap, the independent witness, who is cousin
brother of Amit Kumar Kachhap has stated that Amit Kumar Kachhap
went to bring his wife but she did not come back. Sangeeta Toppo has
also re-married though he is not aware that with whom she has re-
married.
16. In view of the overall evidence adduced on behalf of both the parties,
it is found that the respondent-applicant has been residing aloof from the
husband without any reasonable cause. Accordingly, this point of
determination is decided in favour of the petitioner-husband and
against the opposite party-wife. In consequence thereof, in view of
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Section 125 (4) of the Code of Criminal Procedure, 1973 she is not
entitled to any amount of maintenance. Section 125(4) of the Code of
Criminal Procedure, 1973 reads as under:
“(4) No wife shall be entitled to receive an 5[allowance for the
maintenance or the interim maintenance and expenses of
proceeding, as the case may be,] from her husband under this
section if she is living in adultery, or if, without any sufficient
reason, she refuses to live with her husband, or if they are living
separately by mutual consent.”
17. So far as the second point of determination i.e. whether the quantum
of maintenance is disproportionate in view of the income and assets of the
petitioner-husband is concerned, since she is not entitled for any amount of
maintenance, no need to decide this point of determination.
18. In view of the above, the impugned order passed by the learned court
below needs interference and this Criminal Revision deserves to be allowed.
19. Accordingly, this Criminal Revision is hereby allowed and the order
passed by the learned Court below is set aside.
20. Let a copy of this order be communicated to the learned Court
concerned through ‘FAX’
(Subhash Chand, J.)
Madhav/- A.F.R.
