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Harinder Katoch Vs. Smily Sharma - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberCr.MMO No. 4102 of 2013
Judge
AppellantHarinder Katoch
RespondentSmily Sharma
Excerpt:
rajiv sharma, j. 1. this petition is directed against the order dated 14.6.2013 rendered by learned additional sessions judge chamba in criminal revision no.2/13, whereby he has upheld the order dated 29.10.2012 rendered by the learned chief judicial magistrate, chamba, in case no.91-iv/11. 2. œkey facts? necessary for the adjudication of this petition are that the marriage between harinder katoch (hereinafter referred to as the œpetitioner for the sake of convenience) and smily sharma (hereinafter referred to as the œrespondent? for the sake of convenience) was solemnized on 6.5.2006 as per hindu rites at chamba. the petitioner treated the respondent nicely for about 2-3 months after the marriage. thereafter, he developed habit of drinking and started maltreating and.....
Judgment:

Rajiv Sharma, J.

1. This petition is directed against the order dated 14.6.2013 rendered by learned Additional Sessions Judge Chamba in Criminal Revision No.2/13, whereby he has upheld the order dated 29.10.2012 rendered by the learned Chief Judicial Magistrate, Chamba, in Case No.91-IV/11.

2. œKey facts? necessary for the adjudication of this petition are that the marriage between Harinder Katoch (hereinafter referred to as the œpetitioner for the sake of convenience) and Smily Sharma (hereinafter referred to as the œrespondent? for the sake of convenience) was solemnized on 6.5.2006 as per Hindu rites at Chamba. The petitioner treated the respondent nicely for about 2-3 months after the marriage. Thereafter, he developed habit of drinking and started maltreating and beating the respondent under the influence of liquor. The petitioner gave severe beatings to the respondent in the month of August, 2006. Her jaw was got fractured. She was got treated by her parents. The respondent requested the petitioner to behave properly and to stop drinking and maintain her decently. She was forced to live with her parents.

The respondent is an educated girl. On 9.8.2008, the respondent had gone to take examination of HPAS at Dharamshala. After taking exam, when she was returning home by bus and reached at Banikhet, the petitioner came there and forcibly alighted her from the bus and made her to sit in a car. On 10.8.20008, the petitioner under the influence of liquor visited her parental house at about 4.00 P.M. and started abusing her and her parents. The matter was reported to the police. According to her, she has no source of income and has been neglected and treated with cruelty by the petitioner. The petitioner is contractor by profession and earns about Rs.25,000/- per month and has sufficient means to provide maintenance to the petitioner. Hence, she filed petition under Section 125 Cr.P.C. claiming Rs.8,000/- per month as maintenance.

3. The petition was contested by the petitioner. According to him, he has not maltreated the respondent. He was informed by the respondent to take her from Banikhet. He has denied that he had ever given beatings to the respondent. No report was ever made to the police.

4. Learned Judicial Magistrate, 1st Class, vide order dated 29.10.2012 allowed the petition and respondent No.1 was held entitled to maintenance to the tune of Rs.4000/- per month from the date of filing of the petition, i.e. 4.4.2011 till she-marry.

5. Petitioner feeling aggrieved by the order dated 29.10.2012 preferred a revision petition before the learned Additional Sessions Judge Chamba, who dismissed the same vide order dated 14.6.2013. Hence, this petition.

6. I have heard learned counsel for the parties and gone through the impugned orders and pleadings carefully.

7. AW1, respondent Smily Sharma, has testified that she was married to the petitioner on 6.5.2006. Relations between the parties remained cordial for about 2-3 months after the marriage. Thereafter, the petitioner started beating her under the influence of liquor and she was turned out of the matrimonial house by the petitioner. She has no source of income. She had gone to appear in the competitive examination at Dharamshala and when she was coming back to her parental home, the petitioner alighted her from the bus at Banikhet barrier and she was forced to sit in a car. He was under the influence of liquor. Her cousin Kaka was with her. Her father had to submit an application at Police Station when the petitioner used filthy language against her and her parents. Petitioner is a contractor and earning Rs.25,000/- per month. She has admitted that on 25.12.2007, she had gone to her parental house to celebrate her mothers birthday.

8. AW2 Shiv Kumar is father of the respondent. He has supported the version of AW1 Smily Sharma. According to him, after three months of marriage, the petitioner started maltreating and beating the respondent under the influence of liquor. The matter was compromised several times, but the petitioner did not mend his way. His income is about Rs.25,000/- - Rs.30,000/- per month. He has also stated the manner in which the respondent was forcibly alighted from the bus at Banikhet and was made to sit in a car. He had reported the matter to the Police Post, Chamba vide application Ext.AW2/A.

9. AW3, HHC Ramjeevan, has proved on record application, AW2/A submitted by AW2 Shiv Kumar.

10. AW4, Suresh Kumar, has deposed that in the year 2007, he was called by family members of the respondent on dinner. At about 8.00 P.M., the petitioner came there under the influence of liquor. The petitioner had scuffle with the brother of AW1 Smily Sharma.

11. AW5, Aman Deep Sharma, is cousin of AW1 Smily Sharma. He has deposed the manner in which the respondent was forcibly alighted from the bus at Banikhet and was made to sit in a car by the petitioner, who was under the influence of liquor.

12. Petitioner, Harinder Katoch, appeared as RW1. According to him, he does not consume liquor. He has denied that he has ever given beatings to the respondent. He has admitted that the respondent is not earning anything.

13. What emerges from the facts enumerated hereinabove is that the petitioner started maltreating and beating the respondent under the influence of liquor after few months of marriage. In the month of August, 2006, he gave severe beatings to the respondent, due to which her jaw was got fractured. He neglected to maintain her and she was shunted out of the matrimonial house. The petitioner even misbehaved with the respondent on 9.8.2008 when she was coming back to her parental house after appearing in the competitive examination at Dharamshala. Next day, he visited the house of the respondent and used hurled filthy abuses to the respondent and her parents, which led to filing of an application, Ext.AW2/A by the father of the respondent before the Police Post Chamba. The application, Ext.AW2/A was duly proved by AW3 HHC Ramjeevan. AW5 Aman Deep Singh has also deposed the manner in which the petitioner misbehaved with the respondent when she was coming back to home after taking competitive examination. It has come on record that the petitioner is contractor by profession and earns about Rs.25,000/- to Rs.30,000/- per month. It has come in the statement of the petitioner that the income of respondent is nil. Version of the petitioner that the respondent had called him to take her from Banikhet cannot be believed. He had gone to Banikhet of his own. The respondent is living with her parents since 2007. Thus, there was no occasion for the respondent to have called the petitioner to take her from Banikhet. She was accompanied by her cousin, AW5 Aman Deep Singh. The petitioner visited the house of the parents of the respondent under the influence of liquor and misbehaved with the respondent and her parents. Father of the respondent was constrained to file a complaint at Police Post Chamba. The petitioner also took up quarrel with the brother of the respondent at her house. There is no tangible evidence to establish that the petitioner ever tried to take back the respondent to her matrimonial house. His conduct is of total defiance. During the cross-examination, he has admitted that monthly requirement of the respondent is about Rs.7,000/- - Rs.8,000/-. He has treated the respondent with cruelty and neglected her to maintain.

14. In Kandaswami Moopan vs. Angammal, AIR 1960 Madras 348, learned Single Judge of Madras High Court has held that the possession of property is not at all the criterion for awarding maintenance. It is independent of possession of property. So long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife. Learned Single Judge has held as under:-

œ(6) Then it is argued that the husband is not in flourishing circumstances and that the income got by him would not justify maintenance given by the learned Magistrate. I must first of all point out that it is the settled practice of this High Court not to interfere in revision with the quantum of maintenance which is awarded by Magistrates unless it is so manifestly perverse that it requires interference without any further argument on the subject. Besides, the possession of property is not at all the criterion for awarding maintenance under Sec. 488. It is independent of possession of property. So long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife.

Therefore, our Courts have gone to the extent of laying down that, notwithstanding the fact that a husband may be an insolvent or a professional beggar or a minor or is a sadhu or a monk, he must support his wife, so long as he is able-bodied and can eke out his livelihood and support his wife. In fact, in one case which was argued before the Bombay High Court, when a man pleaded that he entered the holy orders the Bombay High Court said that in such a case he should doff off his orange robes and get employed and earn money in order to support his wife and children.

The case-law on the subject will be found in Dhani Ram v. Mst. Ram Dei, Prabhulal v. Parvatibai, AIR 1952 Madh Bha 96: 1952 Cri LJ 868; Abdul Wahab v. Mt. Sugrabi 37 Cri LJ 86: 159 Ind Cas 120 (Nag); in re, Kandaswami Chetty, AIR 1926 Mad. 346: 27 Cr LJ 350; Kantivijayaji v. Emperor, AIR 1932 Bom 285: 33 Cri LJ 625, and Mohomed Hussein Abdul Kadar v. Emperor, AIR1940 Bom. 344: 42 Cr. LJ 101. Therefore, we need not make a meticulous inventory of the assets of this husband in order to calculate the exact maintenance which has got to be awarded.

In fact, even under the Hindu law, the obligation to support the wife is a personal obligation which attaches from the moment of marriage. It is independent of possession of property (see Mayne's Hindu Law, 11th edition, page 818). In this case, I have already set out the maintenance awarded by the Magistrate, and in these days of high cost of living it is certainly not unconscionable that an amount of Rs. 20/- per month should be awarded to the wife and Rs. 5/- to each of the two children of this petitioner.?

15. In Chander Parkash Bodh Raj vs. Shila Rani Chander Parkash, AIR 1968 Delhi 174, learned Single Judge of Delhi High Court has held that an able bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. Learned Single Judge has held as under:-

œ(7) But this apart, as submitted by Shri Bhandari, an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. In the present case, as the husband has not frankly disclosed to the Court, as he ought, his allowances which he admittedly gets, the presumption would be easily permissible against him.

16. In Raibari Behera vs. Mangaraj Behera, 1983 Crl.L.J. 125, learned Single Judge of Orissa High Court has held that the object of the provision being to prevent vagrancy and destitution, in determining the reasonable quantum of maintenance, it has to be found out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. Learned Single Judge has explained the words œHaving sufficient means?. It does not singly only means like estate or definite employment, but also includes capacity to earn money.

Learned Single Judge has held as under:-

œ10. The next question for consideration is as to what would be the reasonable quantum of maintenance to be paid by the opposite party and from which date. What is to be kept in mind while fixing the quantum of maintenance has been laid down by this Court in Basanta Kumari Mohanty v. Sarat Kumar Mohanty (1982) 53 Cut LT 53 : 1982 Cri LJ 485 and the same view has been adopted in the case of Smt. Choti Dei v. Hemanta Kumar Sahu (1982) 54 Cut LT 36 : 1982 Cri LJ NOC 173. The object of the provision being to prevent vagrancy and destitution, it has to be found out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for a moderate Jiving, the earnings of the husband and his capacity to earn and his commitments are relevant factors while determining the quantum of maintenance. In the instant case, the evidence from the side of the petitioner was that the opposite party was possessed of about seven acres of landed properly and had sufficient means to maintain the petitioner, while the opposite party, by the evidence from his side and on the basis of Ext. A the record of rights wanted to establish that there had been partition between him and his two brothers of the 4.81 acres of land recorded in Ext. A and that he had been in possession of about one and a half acres of land. The opposite party was certainly an able-bodied person capable of maintaining the petitioner. The word "means" does not signify only means like estate or definite employment, but also includes capacity to earn money. If a man is healthy and able-bodied, he must be taken to have means to support his wife and children and he cannot take the plea of not having sufficient means. A person has sufficient means if he has capacity to earn. Notwithstanding the fad that a husband is an insolvent or a professional beggar or a minor or a monk, he must support his wife so long he is able-bodied and can eke out his livelihood (See the case of Basanla Kumari Mohanty v. Sarat Kumar Mohanty 1982 Cri LJ 485 (supra). The word "means" does not imply only visible means. It includes a capacity. to earn. A person who is lit to earn his livelihood cannot be relieved of his liability under the section even if he is young and unemployed, as has been laid down by this Court in Smt. B. Veragam v. Manoranjan Samanta Kumar ILR (1963) Cut 415 : (1963) 29 Cut LT 584. Judicial decisions are unanimous that the expression "means" occurring in Section 488 of the Code (old) (corresponding to Section 125 of the present Code) does not signify only visible means, such as, real property or definite employment and that if a man is healthy and able-bodied, he must be held to possess the means to support his wife and children and he cannot be relieved of his obligation on the ground that he is unemployed. The opposite party, having sufficient means, has neglected and refused to maintain the petitioner.?

17. In Durga Singh Lodhi vs. Prembai and ors., 1990 Cr.L.J. 2065,learned division bench of Madhya Pradesh High Court has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance. Learned division bench has also held that an able bodied healthy person capable of earning must be subjected to pay maintenance allowance. If such a person avoids to discharge that obligation despite issuance of distress warrant, he can be sentenced to imprisonment.

18. In Jupally Veeraswamy vs. Jupally Shantamma, 1996 Cri.L.J. 3209, learned Single Judge of Andhra Pradesh High Court has held that where a revision against an order deciding quantum of maintenance was dismissed, a petition under Section 482 Cr.P.C. would not be maintainable. Learned Single Judge has held as under:-

œ3. Aggrieved by the said order in the revision, this petition under S. 482, Cr.P.C. to quash the order of the lower Court is filed. The learned counsel appearing for the respondents herein submitted that by virtue of S. 399(3), Cr.P.C., no further proceedings by way of revision at the instance of such person shall be entertained by the High Court or any other Court. Therefore, the petitioner herein having failed in the revision before the Sessions Judge cannot file this proceeding under S. 482, Cr.P.C.

5. I see considerable force in the submission of the learned counsel for the respondents. The petitioner herein had failed in the revision filed by him before the Sessions Court. Ordinarily, no further proceedings are maintainable by virtue of the above mentioned judgments. However, learned counsel for the petitioner brought to my notice a judgment of my learned brother justice V. Rajagopala Reddy reported in D. Lakshmana Rao. v. E. Kamala Bai (1996) 1 Andh LT (Cri) 29. In this case he considered the scope of the judgment of the Supreme Court in Ganesh Narayan Hegde v. S. Bangarappa. In that case the Supreme Court held (at p. 2938 of Cri LJ) :-

"While it is true that availing of the remedy of the revision to the Sessions Judge under S. 399 does not bar a person from invoking the power of the High Court under S. 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. While exercising its

inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges."

8. In the case on hand, both the Courts considered the quantum to be granted. They have given certain amounts to the respondent. The present revision is certainly an attempt to convert this Court as a Secondary Revisional Court. Such attempt cannot be allowed to fructify. There is no abuse of process of Court. Therefore, this Court cannot interfere while exercising powers under S.482 of the Code of Criminal Procedure.

19. In Laxminarayan Patnaik vs. Saudamini Patnaik, 1993 Cri.L.J. 227,learned Single Judge has held that when the intention of legislature is apparent in the Criminal Procedure Code that an order under Section 125, Cr.P.C. can only be revised once in a proceeding for revision and no second revision is provided, then a petition under Section 482 Cr.P.C. praying to revise the order passed by revisional Court is not maintainable.

Learned Single Judge has held as under:-

œ7. The petitioner in this Criminal Misc. Case preferred under Section 482, Cr. P.C. has prayed to revise the impugned order passed by the learned Addl. Sessions Judge in Criminal Revision preferred against the order passed by the learned S.D. J.M. to meet the ends of justice. When the intention of the legislature, is apparent in the Criminal Procedure Code that an order under Section 125, Cr. P.C. can only be revised once in a proceeding for revision and no second revision is provided, such a petition under inherent power is not maintainable. While dismissing the instant case as not maintainable, I also indicate that the impugned order otherwise is not to be interfered with as devoid of any merit. Criminal Misc. case is dismissed but there shall be no order as to costs.?

20. In Kola Keshava Reddy vs. Kola Anantha Lakshmi, 1997 Cri.L.J. 933, learned Single Judge of Andhra Pradesh High Court has held that once the revision is dismissed by the learned Sessions Court, second petition under Section 482 Cr.P.C. was not maintainable. Learned Single Judge has held as under:-

8. In the case on hand, both the Courts considered the quantum to be granted. They have given certain amounts to the respondent. The present revision is certainly an attempt to convert this Court as a Secondary Revisional Court. Such attempt cannot be allowed to fructify. There is no abuse of process of Court. Therefore, this Court cannot interfere while exercising powers u/S. 482 of the Code of Criminal Procedure.

21. In Mast Ram vs. Shanti Devi, 2002 Cri.L.J. 1616, learned Single Judge of this Court has held that concurrent findings of trial court and revisional Court that wife does not possess means to maintain herself and that petitioner-husband is not maintaining her, merits of such findings cannot be gone into under Section 482 Cr.P.C. or under Article 227 of the Constitution of India, which has very narrow scope. Learned Single Judge has held as under:-

œ7. As is evident from the petition itself, the petitioner intends to invoke the jurisdiction of this Court under Section 482 of the Code and Article 227 of the Constitution of India with the aid of Sections 397 and 401 of the Code. The petitioner having already availed himself of the remedy of criminal revision under Sections 397/401 of the Code is debarred from preferring a second revision in view of the provisions of Sub-section (2) of Section 397 of the Code, therefore, the question arises whether there is anything in this petition which may render it maintainable under Section 482 of the Code and Article 227 of the Constitution?

8. Be it stated that there are concurrent findings of two Courts below that the respondent does not possesses means maintain herself and that the petitioner is not maintaining her. Evidently, the merits of such findings cannot be gone into under the provisions of Section 482 of the Code and Article 227 of the Constitution which has a very narrow scope. The powers of this Court sought to be invoked, can be exercised only in the rarest of the rare cases where grave injustice is shown to have been caused and requires to be undone.

9. In fact there is nothing in the dispute and the impugned orders which may be called or termed as illegality which was resulted in gross injustice to the petitioner or which may call for interference of this Court to prevent abuse of the process of the Court or to secure the ends of justice or to give effect to any order under the Code. Thus, there is no case to invoke the powers of this Court under Section 482 of the Code or/and Article 227 of the Constitution.

10. The present petition in fact is nothing more than a second revision-petition which is not maintainable in view of the pro-visions of Sub-section(2) of Section 397 of the Code.?

22. In Asit Baran Mukherjee vs. Fuleswari Mukherjee, 2003 Cri. L.J. 1344, learned Single Judge of Calcutta High Court has held that provisions of Article 227 of the Constitution of India cannot be used as substitute to Section 397(2) or Section 482 Cr.P.C. to assail the proceedings under Section 125 Cr.P.C.. Learned Single Judge has held as under:-

œ5. At the very outset, the learned advocate appearing on behalf of the opposite party-wife before me has challenged the legal maintainability of this revisional application on the ground that the finding of fact by both the courts below being concurrent, there cannot be any scope for the petitioner to prefer any such second revisional application challenging the said concurrent findings of fact. This contention of Mr. Bhattacharjee can hardly be furnished aside. Under Section 397(2) of Cr. P.C. a second revision is not permissible particularly when both the courts below have pronounced the same findings of fact and the aggrieved petitioner has come to this court for the second time. A petition under Article 227 of the Constitution of India has a limited compass. Article 227 of the Constitution should not be taken as a universal panacea to be applied in cases where the revisional application under Section 397 Cr. P. C. is not tenable under the law. The conditions for applying this particular provision of the Constitution touching the power of general superintendence of this court over the performance of the inferior courts are settled by the Apex Court in a large variety of cases and the principles which have been enunciated are that the provisions of this Article can be attracted where there are errors apparent on the face of the record or where there are violation of principles of natural justice or there are errors which are so gross and flagrant that intervention of the court is called for or the impugned order suffers from perversity or the order is founded on a misreading of the evidence or on the basis of no material at all. In these limited number of situations the provisions of Article 227 of the Constitution of India can be attracted and it cannot be used as a substitute for Section 397 or Section 482 of the Criminal Procedure Code.

6. In the present case, as it will be clear enough, there is no such error apparent, on the face of the record or perversity in the matter of drawing of the conclusions by the court below or it is also not the case that the findings of the courts below were due to misreading of the evidence on record or they are founded on no material at all. That being the position, it will not be permissible for this court to scan the evidence just like an ordinary appellate or criminal court and to ascertain whether the courts below were justified in drawing the conclusions from the evidence. Therefore, I find sufficient substance in the contention advanced by the learned advocate for the opposite party that this application under Article 227 of the Constitution of India is not legally maintainable at all, the provisions of that Article being not attracted to such a situation.?

23 In Shail vs. Manoj Kumar and ors., (2004) 4 Supreme Court Cases 785, their Lordships of Honble Supreme Court have held that if convinced of genuineness of case that a deserted person, repeatedly knocking at its doors, is on verge of destitution, High Court itself has jurisdiction to direct suitable amount of maintenance and to secure compliance with its direction if subordinate court has failed to grant or to enforce the same relief. Their Lordships have held as under:-

œ3. In Surya Dev Rai v. Ram Chander Rai and Ors., this Court has held that in exercise of power of superintendence conferred under Article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior Court or Tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or Tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. If convinced of the genuineness of the averments made by the petitioner and if convinced that a deserted woman, repeatedly knocking at its doors, is on the verge of destitution the High Court itself has jurisdiction to direct suitable amount of maintenance being awarded and to secure compliance with its directions, if the same relief the subordinate Court has failed to grant or to enforce. May be that the High Court could have passed such order on the next date of hearing. But the petitioner has approached this Court probably impelled by impatience.?

24. Respondent has led sufficient evidence to prove that petitioner is not maintaining her. She is legally wedded wife of petitioner. Learned Chief Judicial Magistrate, Chamba, has rightly granted maintenance of Rs.4,000/- per month to the respondent after taking into consideration the entire evidence adduced by the parties. There is no perversity or any illegality in the impugned order dated 29.10.2012 rendered by the learned Chief Judicial Magistrate, which has been upheld by learned Additional Sessions Judge Chamba vide order dated 14.6.2013.

25. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. The pending application(s), if any, also stands dismissed. No costs.


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