FATIK MANDAL Vs. STATE OF JHARKHAND AND ORS.

JUDGEMENT

(1.) This revision is directed against the order dated 4.5.2013 passed by the learned Principal Judge, Family Court, Dumka in Cr. M.P. No. 69/2009 filed under Sec. 125 Cr.P.C. whereby the petitioner was directed to pay maintenance of Rs. 3,000/ - p.m. to the O.P. -wife from the date of the filing of the petition i.e. from 16.11.2009. Learned counsel for the petitioner has assailed the impugned order and submitted that O.P. -wife has admitted in her evidence as P.W. 1 that before filing of the divorce case, a panchayati was held wherein it was settled that Rs. 20,000/ - would be given to her as future maintenance and ornaments, utensils etc. shall be returned to her. In her evidence she has admitted that she was paid Rs. 4,500/ -. It is submitted that the said panchanama dated 23.8.2003 [Ext. 1 of Matrimonial (Divorce) Suit No. 10 of 2005] was brought on record which is as Annexure -1 of this application. It is argued that after the divorce, as per the panchayati in the year 2003, the O.P. -wife did not reside with the petitioner whereafter she filed a case being Sikaripara P.S. Case No. 12/2008 under Sec. 498 -A IPC and under Ss. 3 and 4 of Dowry Prohibition Act. That the petitioner had faced the trial and he was acquitted in the said case. Certified copy of the judgment was marked as Ext. -A in the court below. That prior to institution of the aforesaid case O.P. -wife had also filed Matrimonial (Divorce) Suit No. 10/2005 on allegation of impotency as a ground for divorce and by order dated 24.5.2007 the trial court had directed the O.P. -wife to resume her conjugal life but she did not approach the petitioner or file any application for restitution of conjugal rights. It is contended that the said cases were filed on frivolous grounds and this reflects on the conduct of the O.P. -wife, that she is bent upon harassing the petitioner in one way or the other.

(2.) It is argued that the impugned order has been passed without considering and appreciating the fact that O.P. -wife has obtained divorce in the panchayati on payment of Rs. 20,000/ - as full and final settlement. That the petitioner is not of sound mental health and is incapable of earning or providing any maintenance rather he is dependent on his elder brother.

(3.) Per contra, learned counsel appearing on behalf of O.P. -wife has contended that it would be evident from the evidence discussed by the learned court below that this petitioner examined himself as O.P.W. 5 and he has stated that panchayati took place in August, 2003 and Rs. 20,000/ - was paid to the O.P. -wife and other articles were taken by her but he has admitted that there was no formal order of divorce passed by any competent court. That in paras 11 and 12 of his deposition he has admitted that he cannot say as to when he had paid the money and handed over the articles to O.P./wife, or who were the members present in the said panchayati. That the witnesses examined on behalf of O.P. -wife have categorically stated that O.P. is residing with her father and is dependent on him and it is her statement that she was forced to leave the matrimonial home though she has admitted that there was panchayati, but in the said panchayati certain conditions were imposed which have not been, fulfilled by the petitioner. The witnesses have stated that the petitioner never visited or enquired about the well being of O.P. These facts are supported by the witnesses examined on behalf of O.P. -wife. Elder brother of the petitioner, O.P.W. 4, has admitted that the marriage of O.P. and the petitioner has not been dissolved by any decree of divorce neither could he say the date when the marriage of the O.P. was dissolved by the Panchayat. That the acquittal of the petitioner in the case under Sec. 498 -A IPC was on the ground that the said case was instituted on account of non -fulfillment of certain conditions which were enumerated in the panchanama and this shows that since the conditions were not fulfilled there was no ground for making out an offence under Sec. 498 -A IPC. It is argued that the petitioner has not paid a single farthing since the date of passing of the order granting the maintenance.