Criminal revision petition challenging the impugned order  dismissed as the order does not call for revisional jurisdiction – Jharkhand high court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 6414 Kaleshwar Rabani @ Kauleshwar Rabani S o Late Jitu Ram Rabani resident of Village Gola P.O. & P.S. Gola District 1. The State of Jharkhand 2. Geeta Devi W o Kauleshwar Rabani D o Late Bal Kichun Rabani at present resident of Village Basariya P.O. & P.S. Keredari District Hazaribag Versus … … 3. Bharti Kumari D o Kauleshwar Rabani resident of Village Basariya P.O. & P.S. Keredari District Hazaribag … Opposite Parties CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY : Mr. Lalan Kumar Singh Advocate For the Petitioner For the Opp. Party State : Ms. Lily Sahay A.P.P. For Opp. Party No.2 & 3 : Mr. Shailendra Jit Advocate 09 24.01.2022 Heard Mr. Lalan Kumar Singh learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Shailendra Jit learned counsel appearing on behalf of the Opposite Party Nos.2 and 3 and Ms. Lily Sahay learned counsel appearing on behalf of the State. This criminal revision application has been filed against the order dated 15.05.2014 passed by the learned Principal Judge Family Court Hazaribag in M. Case No. 08 2009 under Section 125 of Cr.P.C. on an application filed by Opposite Party Nos.2 and 3 whereby and whereunder the petitioner has been directed to pay Rs.3 000 per month to the Opposite Party No.2 Geeta Devi and Rs.1 000 per month to the Opposite Party No.3 Bharti Kumari as maintenance allowance from the date of filing of the application i.e. 27.01.2009. Arguments on behalf of the petitioner Learned counsel for the petitioner submitted that the impugned order passed under Section 125 of the Code of Criminal Procedure is fit to be set aside inasmuch as the order of maintenance was passed on the basis of conviction of the petitioner for the offences under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and against the said order of conviction an appeal was pending. But during the pendency of the present petition the said appeal has been decided and the judgment of conviction under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act has been set aside by the appellate court as the marriage itself could not be proved. He submitted that once the marriage could not be proved in the criminal case the impugned order being based on the conviction in the criminal case is also fit to be set aside. Thus it is proved beyond doubt that the petitioner is not the husband of the Opposite Party No.2 and therefore the impugned order of maintenance treating the petitioner as husband of the Opposite Party No.2 is perverse and is fit to be set aside. Arguments on behalf of the Opposite Parties The learned counsel appearing on behalf of the Opposite Party Nos.2 & 3 on the other hand opposed the prayer and submitted that the impugned order was passed not only by considering the conviction of the petitioner in the criminal case for the offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act but also considering the evidence of the applicant i.e. the Opposite Party No.2 and her cross examination. He submitted that during cross examination it was put to the applicant that she was forcibly wedded to the petitioner in the temple under pressure of the police personnel from thana which she denied. She was also cross examined by putting a question that the Satpati was also not performed which she again denied. The learned counsel submitted that the trend of cross examination of the applicant itself indicates that the petitioner was questioning the marriage by cross examination on the point that the marriage was performed by force and or the rituals of the marriage were not completed. The learned counsel for the private opposite parties further submitted that the evidence of the applicant Opposite Party No.2 has been supported by the other witnesses produced by her. 7. He also submitted that it is not in dispute that the applicant was initially married to the elder brother of the petitioner in the year 1991 and when the elder brother expired second marriage of the applicant was performed with the petitioner her brother in law in the year 1999. Out of the first marriage of the applicant one girl child was born and out of her second marriage with the petitioner another girl child was born. He submitted that at the stage of passing order under Section 125 of Code of Criminal Procedure only prima facie finding is required to be recorded regarding marriage and therefore acquittal of the petitioner in the criminal case where the marriage could not be proved has no bearing in the present matter. He submitted that the only remedy which could be available to the petitioner is to file a civil suit regarding marriage declaration of his marital status vis à vis applicant. He submitted that the impugned order has been passed on the basis of two distinct materials i.e. conviction of the petitioner under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act and also upon the appreciation of evidences which had come during the proceedings under Section 125 of Code of Criminal Procedure. He submitted that merely because of the fact that the petitioner has been acquitted in the criminal case the same will not amount to erasing the other materials on record regarding the marriage between the parties. He submitted that acquittal of the petitioner in the criminal case has no bearing in the present matter as the impugned order of maintenance is sustainable on the basis of other materials available on record which have been duly appreciated by the learned court below while passing the impugned order and accordingly the impugned order is neither illegal nor perverse nor suffers from any material irregularity calling for any interference in revisional jurisdiction. The learned counsel also submitted that after the order of maintenance passed by the learned court below no amount has been paid to the Opposite Party No.2 and she as well as her daughter has been deprived of the maintenance amount. The learned counsel appearing on behalf of the Opposite Party State also opposed the prayer and submitted that the impugned order does not call for any interference. Rejoinder arguments on behalf of the petitioner In response the learned counsel for the petitioner submitted that he is also ready for D.N.A. test to find out as to whether the second daughter of the applicant Opposite Party No.2 is the daughter of the petitioner or not. Findings of this Court 11. After hearing the learned counsel for the parties and going through the impugned judgment and the materials on record this Court finds that Maintenance Petition No.009 was filed by the two applicants namely Geeta Devi and her daughter namely Bharti Kumari under Section 125 of Code of Criminal Procedure stating that Geeta Devi is the legally married wife of the present petitioner and the marriage was solemnized in the year 1999 at Durga Mandir Gola as per Hindu Customs. Thereafter she went to her matrimonial home lived with the present petitioner as husband and wife at Village Gola District Hazaribagh and out of the wedlock a daughter namely Bharti Kumari was born. The daughter is living with her mother Geeta Devi. The further case of the applicant Geeta Devi was that she was first married with Niranjan Rabani the elder brother of the present petitioner and a daughter namely Arti Kumari was born who is residing at Gola. After death of Niranjan Rabani with consent of all the family members second marriage of the applicant Geeta Devi was solemnized with the present petitioner. Further case was that the petitioner and his family members demanded Rs.30 000 and one motorcycle from the mother and brother of the applicant Geeta Devi. The father of the applicant Geeta Devi had died earlier. On account of non fulfillment of the demand she was tortured and consequently she was forced to go to her mother’s house. Ultimately the applicant Geeta Devi instituted a criminal case against the present petitioner and his family members which was numbered as T.R. No. 475 of 2008 G.R. No. 35205 and all the accused persons were convicted by the court of the learned S.D.J.M. Hazaribag on 08.09.2008 for the offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act. The applicant Geeta Devi and her daughter having no source of income are unable to maintain themselves and consequently the application for maintenance was filed. The applicants claimed maintenance of Rs. 5 000 per month for Geeta Devi and Rs.2 000 per month for Bharti Kumari. 12. The present petitioner appeared and filed his show cause stating that the applicant Geeta Devi is not his legally married wife and she is the widow of his elder brother namely Niranjan Rabani. He further stated that as per the evidence of the applicant in the court of the learned S.D.J.M. Hazaribag in Gola P.S. Case No. 1105 G.R. No. 35205 the applicant Geeta Devi was earlier married in the year 1998 to his elder brother Niranjan Rabani who died in the year 2001. He further stated that no marriage was solemnized between him and the applicant. He further stated that an appeal being Criminal Appeal No. 160 of 2008 has been filed before the court of the learned District & Sessions Judge Hazaribag against the judgment of the learned S.D.J.M. Hazaribag and the matter is subjudice. The petitioner further stated that he is a poor labour and he is somehow maintaining himself and his three brothers and is living in a small house. 13. Altogether three witnesses were examined from the side of the applicant Geeta Devi and she examined herself as P.W. 1 and fully supported her case. In her cross examination she denied the suggestion that she was forcefully wedded with the present petitioner by the persons posted at the local police station. She further denied the suggestion that only exchange of garlands had taken place. She further stated that the petitioner is working as mason in Gola and she is living at her mother’s house and the present petitioner is not maintaining her. She again denied the suggestion that she was forcefully wedded with the petitioner. The learned court below while scrutinizing the evidence of the applicant Geeta Devi examined as P.W. 1 was of the view that the trend of the cross examination of the applicant indicates that the petitioner has accepted his marriage with the Opposite Party No.2 and she has fully supported her 14. P.W. 2 Ram Awtar Ram stated that both the parties are known to him and the Opposite Party No.2 was married with the petitioner as per Hindu rites and customs in Durga Mandir near Gola police station and after the marriage she stayed in her matrimonial house for some days and a daughter was born out of the wedlock. Subsequently demand of dowry was made and after assaulting her she was ousted from her matrimonial house and then in the criminal case the petitioner and his family members were convicted. He further stated that the Opposite Party No.2 was earlier married with the elder brother of the petitioner and after his death her marriage was performed with the petitioner. He also supported the fact that the petitioner is working as mason and is also a contractor and also does agriculture works and his income is Rs.14 000 but he is not maintaining the applicants. The learned court below was of the view that P.W. 2 has supported the facts of solemnization of marriage between the petitioner and the Opposite Party No.2 and she is living in her parental house and the petitioner is not maintaining her and the petitioner has sufficient source of income and that P.W. 2 has also fully supported the evidence of the Opposite Party No.2. 15. P.W. 3 Rajesh Ram deposed that he knows both the parties and has fully supported all the facts of the case of the applicants as stated by P.W. 2. 16. So far as the petitioner is concerned he examined altogether three witnesses and he himself examined as D.W. 1. he stated that the Opposite Party No.2 was married to his elder brother and out of the wedlock one daughter namely Arti Kumari aged 17 years was born and he has been looking after her. He further stated that after death of his elder brother the Opposite Party No.2 started living at her parental house. He denied his marriage with the Opposite Party No.2 and also denied any matrimonial relationship with her. In cross examination he stated that in the year 2005 he and his brothers were convicted for offence under Section 498A of the Indian Penal Code and also under the Dowry Prohibition Act. He further stated that as per his knowledge the Opposite Party No.2 has only one daughter and not two and if she has any other daughter he has no knowledge about it and stated that he has no knowledge as to whether there is a second applicant namely Bharti Kumari in the case. 17. The learned court below considered the evidence of D.W. 1 and observed that he had given suggestion to the Opposite Party No.2 regarding forceful marriage at the instance of the persons at police station which she had denied and the petitioner has also denied having any knowledge about the fact that there is a second applicant in the present case who has claimed to be the daughter of the Opposite Party No.2. The learned court below found that the petitioner himself stated that the elder daughter of the Opposite Party No.2 is staying with him but the elder daughter has not been examined as a witness in the case and accordingly the petitioner is suppressing the true facts of the case. 18. The D.W. 2 Naresh Ram Rabani stated that the elder brother of the petitioner expired in the year 1995 with whom the Opposite Party No.2 was married. Upon scrutinizing the evidence of D.W. 2 the learned court below found that D.W. 2 is the younger brother of the present petitioner and stays with him and he is not an independent witness. 19. D.W. 3 Suresh Munda stated that Niranjan Rabani was married with the Opposite Party No.2 in the year 1991 and Niranjan died in the year 1995 and thereafter the Opposite Party No.2 went to her parental house. He further stated that the elder daughter namely Arti is being looked after by the present petitioner. In cross examination he stated that he has no idea as to whether the Opposite Party No.2 was married with the petitioner in temple. He also expressed his ignorance as to whether the Opposite Party No.2 lived with the petitioner even after the death of Niranjan and she has another daughter namely Bharti Kumari from the petitioner. The learned court below found that D.W. 3 has not denied about the marriage between the petitioner and the Opposite Party No.2 nor he has denied the birth of the second child of the Opposite Party No.2 from the present petitioner but has expressed his ignorance about this fact. 20. The learned court below referred to the fact that the petitioner and his family members were convicted for the offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act and also referred to the statements of the petitioner under Section 313 Cr.P.C. in the criminal case wherein he had not denied the factum of marriage between the petitioner and the Opposite Party No.2. The learned court below also considered the pendency of the appeal against the judgment of conviction being Criminal Appeal No. 1608 and considered the order dated 18.12.2013 passed in Criminal Appeal No. 160 of 2008 which indicated that the criminal appeal was pending. The learned court below ultimately considered the specific stand of the petitioner taken in the present maintenance case and the trend of cross examination of the Opposite Party No.2 in the present case who has been examined as P.W. 1 which was suggestive of the fact that the petitioner claimed that he was forcefully married to the Opposite Party No.2 but such forceful marriage was denied by the Opposite Party No.2 and the specific case of the Opposite Party No.2 was that she was legally married. The learned court below ultimately held that the applicant Opposite Party No.2 is the legally married wife of the petitioner and one daughter i.e. Applicant No.2 Opposite Party No.3 was born out of wedlock and in spite of having sufficient income the petitioner is not maintaining the applicants and passed the order accordingly. 21. The specific case of the petitioner before this Court is that in the criminal case against which appeal was pending before the learned appellate court the judgment has been rendered on 29.04.2015 wherein the appellate court held that the prosecution has not been able to prove the marriage and consequently there was no scope of demand of dowry and torture and P.Ws. 1 to 5 were declared hostile by the prosecution. Therefore the appellate court in the criminal case was of the view that the prosecution has failed to prove the charges against the appellants therein beyond all reasonable doubts and the judgment of conviction was set aside. 22. The learned counsel for the petitioner has specifically argued that once the judgment of conviction in the criminal case under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act has been set aside by the learned appellate court which according to the petitioner was the sole basis for passing the order under Section 125 of Code of Criminal Procedure the impugned order passed under Section 125 of Cr.P.C. is fit to be set aside. 23. This Court finds that the learned court below did not base its findings solely on the ground of conviction of the petitioner and his family members for offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act in the criminal case but also appreciated the materials on record including the trend of cross examination of P.W. 1 i.e. the Applicant No.1in the present case as well as the cross examination of the D.W. 1 the present petitioner and also the evidence of the other witnesses. Accordingly even if the acquittal of the petitioner for offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act is taken into consideration the same being not the sole material for grant of maintenance this fact by itself is not sufficient to set aside the impugned order granting maintenance. This court finds that the impugned order of maintenance is still sustainable on account of the other materials on record which have been duly discussed and considered by the learned court below. 24. This Court further finds that apart from the fact that the conviction under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act has been set aside no other point regarding the finding of the learned court below based on the other materials on record has been challenged by the petitioner during the course of arguments. 25. This Court is of the view that the marital status between the petitioner and the Opposite Party No.2 which has been disbelieved in a criminal case has no bearing in the present matter as the dispute regarding marital status is to be decided in a properly instituted suit and there is enough material on record to come to a prima facie finding of marriage between the petitioner and the Opposite Party No.2. It further appears from the record that the Opposite Party No.2 had taken a specific stand regarding the marriage having been performed in Durga Mandir at Gola and the petitioner while cross examining the Opposite Party No.2 in the present case had cross examined her on the point of marriage having been forcefully performed under the force of the officers of the thana. Thus the trend of cross examination of the Opposite Party No.2 does not indicate complete denial of performance of some ceremony connection with the marriage. Further the petitioner in his evidence is completely silent regarding the existence of the Opposite Party No.3 who has been claimed to be the daughter of the present petitioner and Opposite Party No.2. 26. Considering these aspects of the matter the impugned order does not become perverse only on account of acquittal of the petitioner and his other family members in the criminal case where the marriage could not be proved beyond all reasonable doubts. There are sufficient other materials on record to sustain the impugned order of maintenance. In view of the aforesaid findings the impugned order does not call for any interference in revisional jurisdiction of this court in absence of any perversity illegality or material irregularity. Accordingly this criminal revision application is hereby dismissed. 28. Consequently the petitioner is directed to pay the total current maintenance allowance @ Rs.4 000 per month Rs.3 000 + Rs.1 000 ) to the Opposite Party No.2 w.e.f. February 2022 by 10th calendar day of every succeeding month. The petitioner further directed to pay accumulated arrears of maintenance allowance right from the date of filing of the maintenance case in installments of Rs.10 000 per month along with the current monthly installments to the Opposite Party No.2 till full payment of the total arrear amount accrued till date. On account of non compliance of the aforesaid directions the opposite parties no. 2 and 3 will be entitled to recover the entire arrears and current 12 maintenance amount through the process of law and also take all measures against the petitioner as permissible under law. Interim order if any stands vacated. 30. Pending interlocutory application if any is closed. 31. Let the Lower Court Records be sent back to the learned court below. 32. Let a copy of this order be communicated to the learned court below through ‘FAX email’. Anubha Rawat Choudhary J.) 

Summary: Criminal revision petition challenging the impugned order  dismissed as the order does not call for revisional jurisdiction – Jharkhand high court A criminal revision petition was filed by the petitioner challenging the impugned order passed under section 125 CRPC and directed the petitioner to give maintenance to opposite parties the petition was heard and dismissed by a single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Kaleshwar Rabani versus The State of Jharkhand and Ors  Cr. Rev. No. 641 of 2014. The learned counsel on behalf of the petitioners submits that the impugned order passed under Section 125 of the Code of Criminal Procedure is fit to be set aside as the order of maintenance was decided based on petitioner conviction under section 498A of the Indian penal code and Section 4 of the Dowry Prohibition Act and an appeal is also pending against the matter of conviction and during the pendency of present petition the said appeal against the judgment of conviction is set aside by the appellate court as marriage in the matter could not be proved. the marriage could not be proved in the criminal case the impugned order based out on the matter of conviction is also fit to be set aside. The learned counsel appearing on behalf of the respondents submits that the impugned order was passed not only on considering the conviction of the petitioner in the criminal case for the offenses under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act, but also the evidence the opposite party in her cross-examination in which the fact was made clear that she was forcefully married to the petitioner and she denied the marriage. this shows that the marriage was performed by force. the counsel also submitted that merely because the petitioner has been acquitted in the criminal case, the same will not amount to erasing the other materials on record regarding the marriage between the parties. The counsel submits that the impugned order is neither illegal, nor perverse, nor suffers from any material irregularity calling for any interference in revisional jurisdiction. The court hearing both sides is of the view that the marital status between the petitioner and the Opposite Party No.2, which is not found valid in a criminal case, has no concern in the present matter as the dispute regarding marital status and there is enough evidence which shows the prima-facie finding of marriage between the petitioner and the Opposite Party No.2 and there is sufficient material on record to maintain the impugned order of maintenance hence, the court does not find any illegality in the order and no need for revisional jurisdiction and the criminal revision petition in the matter is dismissed.