The petitioner, Mr. Bhawani Shankar Dahal, in
his deposition has not stated a single word that his wife left
out her matrimonial house at her own. No question in this
regard was put to respondent Smt. Ganga Maya Dahal in her
cross-examination also.
So far as another submission
regarding non-earning by Bhawani Shankar is concerned, it
is relevant to mention that he has landed property and this
fact has been admitted by him also. The factum of marriage
and daughter from their wedlock is not in dispute in this
case. Even if husband is not earning anything, it is his duty
to maintain his wife, who is unable to maintain herself and
children also.
The amount of Rs.6,000/- (Rupees six
thousand) cannot be said to be excessive, in the facts and
circumstances of the present case, as this amount has been
granted for wife and daughter, both.
THE HIGH COURT OF SIKKIM AT GANGTOK
JUDGMENT
S.B.
RP (FAM. CT.) No. 02 of 2013
Shri Bhawani Shankar Dahal,
- versus -
Smt. Ganga Maya Dahal,
CORAM
HON’BLE THE CHIEF JUSTICE
MR. JUSTICE N. K. JAIN
Date of Judgment : 09.05.2014
Citation; 2014 CR LJ2854 SIKKIM
Heard learned counsel for the petitioner. None is
present for the respondents, despite service of notice upon
them.
2.
The petitioner-husband has preferred this Revision
Petition, under Section 19(4) of the Family Courts Act, 1984,
against the order dated 20.07.2013 passed by Judge, Family
Court, East and North Sikkim at Gangtok in Family Court
(Crl.) Case No. 18 of 2012, whereby while allowing an
application for maintenance under Section 125 of the Code
of Criminal Procedure, 1973 (for short, Cr. P.C.) filed by
applicants/respondents,
it
was
directed
that
husband-
petitioner shall pay Rs.6000/- (Rupees six thousand) per
month towards maintenance to respondents.
3.
Briefly stated, the facts of the case are that
applicants/respondents filed an application for maintenance
under Section 125 of Cr. P.C. before the Family Court for
grant
of
maintenance
of
Rs.12,000/-
(Rupees
twelve
thousand) per month. It was stated in the application that
applicant was married with non-applicant on 24.01.2006 and
from their wedlock, a daughter, namely Priyanka Dahal,
petitioner No. 2, was born on 24.08.2006.
The applicant
was serving in Sikkim Time Corporation, Deorali, Gangtok,
but due to her ill-health and eye problem she submitted her
resignation on 23.10.2009.
The applicant No. 1 and non-
applicant, both came to Turung, South Sikkim in January,
2010 along with their minor daughter and stayed there in
the house of the elder brother of the applicant No. 1 till
March, 2010, for constructing protective wall and planning to
construct a house there on a plot of land gifted by father of
the applicant, which was registered in the name of the
applicant.
It was further alleged that the non-applicant
alone desired to come back to Amba with an ill-motive to
remarry another woman, on collecting a huge amount to be
received from Government of Sikkim for sale/surrender of a
plot of ancestral land of the non-applicant. The applicant did
not allow the respondent to come alone, but non-applicant
did not agree and started harassing the applicant by giving
physical and mental torture, forcing her to go back to
Turung.
kicking
The
and
non-applicant/husband
mercilessly
assaulting
started
the
slapping,
petitioner
with
firewood, despite, that the applicant was pregnant during
the said period.
The non-applicant forced the applicant to
give divorce, so he may remarry another woman and also
told the applicant that he would kill her if she is not willing
to give divorce to him.
In these circumstances, the
applicant raised an objection in the office of Sub-Divisional
Magistrate, Pakyong, East Sikkim to the effect that the
whole amount towards the cost of the ancestral landed
property of the non-applicant should not be given to him. It
was further alleged that in the morning of 23.06.2010, the
non-applicant assaulted the applicant with folded hand on
her back and with a rice-cooker at her stomach, resulting in
miscarriage of applicant.
She was admitted to STNM
Hospital and was discharged on 24.06.2010. It was further
alleged that on 30.07.2010 the non-applicant attempted to
put her on death by pressing her neck and tying a chunni
around her neck.
Other facts were also mentioned in the
application and it was prayed that the application be allowed
and the respondent be directed to pay maintenance of
Rs.12,000/- per month.
The application was supported by
an affidavit of applicant No. 1 Smt. Ganga Maya Dahal. The
certificate of marriage and birth certificate of daughter were
also
enclosed
along
with
other
documents
with
the
application for maintenance.
4.
The opposite party/non-applicant, i.e. present
petitioner, filed reply/written objection, wherein he denied
the allegations as alleged in the application.
However, he
admitted the contents of paragraph 3 of the application
relating to marriage of applicant with non-applicant. He also
admitted that applicant No. 2, Priyanka Dahal, was born
from their wedlock. Non-applicant submitted that it was the
petitioner who herself had left out the residence of the non-
applicant by taking all the household belongings earned and
purchased by him and she had gone to her cousin’s house at
Luing Busty, East Sikkim and also took her minor daughter,
who was studying in the nursery class, without informing the
non-applicant, with a mala fide intention to harass the non-
applicant. He, therefore, submitted that the application filed
by the applicant be dismissed.
5.
In support of the case, the applicant examined
herself as witness No. 1 and non-applicant examined himself
as opposite party-witness No. 1.
The documentary
evidence was also produced, which was exhibited.
6.
Learned
Family
Court
after
considering
submissions of learned counsel for the parties, allowed the
application and directed the husband-non-applicant to pay a
monthly maintenance of Rs.6000/- (Rupees six thousand)
per month to the applicants.
Being
aggrieved
with
the
same, the petitioner has preferred this Revision Petition.
7.
Learned
counsel
appearing
on
behalf
of
husband/petitioner submitted that the petitioner is a farmer
and has no source of income. Therefore, he is unable to pay
Rs.6,000/- towards maintenance to the respondents.
He
also submitted that respondent No. 1, herself, left out the
house of the petitioner, therefore, he is not liable to pay the
amount of maintenance to wife, in view of sub-section (4) of
Section 125 of the Cr. P.C.
He, therefore, submitted that
the learned Family Court committed an illegality in passing
the impugned order, which may be set aside and application
filed by the wife/applicant No. 1 be dismissed.
8.
I have considered the submissions of learned
counsel for the petitioner in the light of reasons assigned by
the Family Court for allowing the application.
examined
the
contents
of
application,
I have also
reply/written
objection, the statements of petitioner as well as respondent
recorded by the Family Court.
9.
the
Smt. Ganga Maya Dahal, in her statement, proved
contents of application
Exhibit-1,
her
affidavit
in
filed for
support
maintenance
of
i.e.
application, i.e.
Exhibit–2 and Exhibit – 3, land record in the name of
husband
Bhawani
Shankar
Dahal.
From
the
cross-
examination of Smt. Ganga Maya Dahal, it is clear that not a
single question was put to her in her cross-examination that
she had left her matrimonial house voluntarily.
The
document, Exhibit – 3 showing the landed property in the
name of husband has also not been challenged.
10.
Mr.
Bhawani
Shankar
Dahal/husband,
in
his
deposition, stated that he is a farmer and is not in a position
to maintain the wife and daughter. He further stated that he
can at the most pay for educational expenses of their
daughter. In his cross-examination, he specifically admitted
that the applicant, i.e. wife has no source of income.
He
also admitted that it is true that he has landed properties, as
mentioned in Exhibit – 3.
11.
Learned
Family
Court
has
considered
the
deposition of both the witnesses and also the documents
placed on record by the parties and came to a conclusion
that the applicant-wife is entitled to get maintenance. I do
not find any infirmity, illegality or perversity in the impugned
order passed by Family Court.
The reasons assigned by
Family Court for allowing the application are absolutely just
and reasonable and no interference in the same is called for.
12.
So
far
as
submissions
urged
on
behalf
of
petitioner-husband is concerned, I do not find any force in
the same.
The petitioner, Mr. Bhawani Shankar Dahal, in
his deposition has not stated a single word that his wife left
out her matrimonial house at her own. No question in this
regard was put to respondent Smt. Ganga Maya Dahal in her
cross-examination also.
So far as another submission
regarding non-earning by Bhawani Shankar is concerned, it
is relevant to mention that he has landed property and this
fact has been admitted by him also. The factum of marriage
and daughter from their wedlock is not in dispute in this
case. Even if husband is not earning anything, it is his duty
to maintain his wife, who is unable to maintain herself and
children also.
The amount of Rs.6,000/- (Rupees six
thousand) cannot be said to be excessive, in the facts and
circumstances of the present case, as this amount has been
granted for wife and daughter, both.
13.
In view of the above discussions, I do not find any
merit in the Revision Petition and the same is, accordingly,
dismissed.
(N.K. Jain)
Chief Justice
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