Pawan Kumar Gupta Vs. Devanti Devi

Court: JHARKHAND HIGH COURT

Bench: JUSTICE H.C. Mishra

PAWAN KUMAR GUPTA Vs. DEVANTI DEVI On 30 March 2012

Law Point:

Family Court directed to pass fresh judgment in accordance with law taking into consideration all materials brought on record by Husband.

JUDGEMENT

1. Heard learned Counsel for the petitioner. No one appears on behalf of the opposite party in spite of valid service of notice upon her.

2. This revision is directed against the judgment dated 8.6.2010 passed by learned Principal Judge, Family Court, Gumla in M. Case No. 51 of 2006, whereby, the petitioner was directed to make payment of Rs. 4,000 per month as maintenance to his deserted wife and two children.

3. It appears that the wife of the petitioner had filed the application under Section 125, Cr.P.C. claiming maintenance for herself and two children and also claiming the earnings of the petitioner to be Rs. 50,000 per annum from agriculture and Rs. 10,000 per month from hotel and a cycle shop. There is allegation against the petitioner of subjecting his wife to cruelty and torture and driving her away with her two children. It also appears that from the side of the petitioner, it was pleaded that the petitioner and his family members were falsely implicated in the case for the offence under Section 498A of the Indian Penal Code, in which, the petitioner and his father and mother were sent to jail. It is claimed that father of the petitioner died in jail itself due to humiliation of false implication in the case and, thereafter, the petitioner also became mentally ill and presently, he is mentally and physically ill and doing no work and the family is ruined by the claimant herself, who did not attend even the last rites of her father-in-law. It also appears that the witnesses examined on behalf of the claimant-wife including the wife herself have admitted the fact that her father-in-law died in jail itself. It also appears that eight prescriptions were brought on record on behalf of the petitioner to show that the petitioner was undergoing treatment for his mental illness. It further appears that the petitioner was not examined as witness in the Court below.

4. In these facts and circumstances and upon appraisal of the evidence brought on record, the Court below has come to the conclusion that the petitioner is living in a joint family and there is income of Rs. 15,000 per month and, as such, the petitioner was directed to make payment of Rs. 4,000 per month as maintenance to his wife and two children.

5. The impugned judgment itself shows that the witnesses examined on behalf of the petitioner on the point of income, have stated that there is no income of the petitioner and he was not doing any work as he was mentally and physically ill and the mother of the petitioner had a small tea shop and his younger brother was doing a cycle shop. The Court below, however, came to the conclusion that the petitioner had income of Rs. 15,000 per month from the hotel and cycle shop and accordingly passed the judgment of maintenance.

6. Learned Counsel for the petitioner has submitted that the impugned judgment passed by the Court below is absolutely illegal, inasmuch as the Court below has come to the imaginary figure about the income of the petitioner and no consideration was made on eight prescriptions, which were brought on record showing that the petitioner was undergoing treatment for his mental illness. Learned Counsel has accordingly submitted that the impugned judgment cannot be sustained in the eyes of law.

7. Upon going through the impugned judgment, I find that there is no basis for the Court below to come to the conclusion that the petitioner had income of Rs. 15,000 from a tea shop, which was being run by his mother and a cycle shop run by his younger brother. It also appears that medical prescriptions which were produced on behalf of the petitioner, were marked exhibits, but no consideration about those prescriptions have been made by the Court below. It is also apparent from the impugned judgment itself that the petitioner himself was not examined and the Court below ought to have taken steps for examining the petitioner to see whether he was mentally fit or not.

8. In the facts and circumstances of the case, I am of the considered view that the impugned judgment cannot be sustained in the eyes of law. The impugned judgment dated 8.6.2010 passed by learned Principal Judge, Family Court, Gumla, in M. Case No. 51 of 2006 is hereby, set aside and the Court below is directed to pass a fresh judgment in accordance with law taking into consideration all the materials brought on record by the petitioner and by examining further witness, if so required for just decision in the case.

9. With these directions, this revision is allowed.

Revision allowed.

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