Patna High Court
ABHIJEET DARSHANversusTHE STATE OF BIHAR
- Decided
- Disposal
- DISPOSED
- Bench
- JITENDRA KUMAR
Holding
The court reduced the maintenance award to Rs 5,000 per month, finding the wife entitled to maintenance despite her leaving the home, and modified the Family Court order accordingly.
Summary
The husband, Abhijeet Darshan, appealed a Family Court order directing him to pay Rs 8,000 per month as maintenance to his wife (OP No. 2) under Section 125 of the Criminal Procedure Code. He argued that his wife left the matrimonial home without any "rhyme and reason," that he earned only Rs 3,000 per month, and that she had her own income, making the award excessive. The State and the wife contended that she left due to dowry demands and cruelty, that the husband had not filed a restitution suit under Section 9 of the Hindu Marriage Act, and that his actual earnings were much higher. The High Court held that the husband’s failure to seek restitution indicated the wife’s willingness to live with him, and that his income could be presumed at least Rs 15,000 per month, warranting a reduced maintenance. Consequently, the court modified the maintenance to Rs 5,000 per month, effective from the filing date, and disposed of the petition.
Issues considered
- Whether the wife is entitled to maintenance under Section 125 Cr.PC when she left the matrimonial home without "rhyme and reason" under Section 125(4).
- Whether the husband's alleged low income justifies the quantum of maintenance awarded.
- Whether the husband's failure to file a restitution of conjugal rights suit affects the entitlement to maintenance.
- What is the appropriate quantum of maintenance in the facts of the case.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 125, 125(4)
- Hindu Marriage Act — s. 13, 9
- Indian Penal Code — s. 498A
Subjects
- maintenance
- Section 125 CrPC
- restitution of conjugal rights
- dowry
- cruelty
- divorce
- ex parte decree
- income assessment
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.203 of 2024
======================================================
Abhijeet Darshan Son Of Balmiki Kumar Sinha Resident Of Village -
Narayanpur, P.S. - Sakatpur, District - Darbhanga
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Kalpna Devi Daughter Of Sudhir Kumar, Wife Of Abhijeet Darshan
Resident Of Village - Narayanpur, P.S. - Sakatpur, District - Darbhanga. At
Present Resident Of Village - Chapahi, P.S. - Rajnagar, District - Madhubani
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
For the State : Mr. Upendra Kumar, APP
For the O.P. No. 2 : Mr. Gagandeo Yadav, Advocate
Mr. Udeshya Kumar Yadav, Advocate
Mr. Vinod Kumar, Advocate
Mr. Rajesh Kumar, Advocate
Mr. Ravi Prakash, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL ORDER
10 16-02-2026 The present criminal revision petition has been
preferred by the petitioner against the impugned order dated
19.02.2024, passed by learned Principal Judge, Family Court,
Madhubani in maintenance petition bearing M.R. Case No. 18
of 2020, filed under Section 125 Cr.PC by O.P. No. 2 herein.
2. By the impugned order, the petitioner is admittedly
the husband of O.P. No. 2 herein and he has been directed to pay
Rs. 8,000/- per month to his wife/O.P. No. 2 herein towards her
maintenance.
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3. Heard learned counsel for the petitioner, learned
APP for the State and learned counsel for O.P. No. 2.
4. Learned counsel for the petitioner being aggrieved
by the impugned order submits that learned Family Court has
failed to appreciate that there was no rhyme and reason for his
wife/O.P. No. 2 to leave his matrimonial home and hence, she is
not entitled to get any maintenance in view of Section 125(4)
Cr.PC.
5. He further submits that even as per the material on
record, the monthly income of the petitioner is only Rs. 3,000/-
per month and hence, award of Rs. 8,000/- per month to his
wife/ O.P. No. 2 herein towards her maintenance would be
unjust and impractical.
6. He also submits that O.P. No. 2/wife has also
source of income by way of providing tuition to students.
7. However, there is no other point raised by learned
counsel for the petitioner against the impugned order.
8. Learned APP for the State and learned counsel for
the O.P. No. 2 submit that as per the material on record, there is
nothing to show that the petitioner-husband has been willing to
keep his wife in his matrimonial home. As a matter of fact, the
O.P. No. 2/wife has left the matrimonial home of the husband-
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petitioner on account of demand of dowry and cruelty being
committed by the petitioner-husband.
9. They further submit in regard to monthly income of
the petitioner-husband that admittedly he provides private
tuition to the students. However, as per the claim of the
petitioner-husband, his monthly income from tuition is only Rs.
3,000/-, though his real income is much higher than that. As a
matter of fact, the monthly income of the petitioner-husband is
Rs. 50,000/- from the private tuition and his landed property.
They further submit that the petitioner-husband has failed to
prove that O.P. No. 2/wife has any source of income.
10. I considered the submissions advanced by the
parties and perused the material on record.
11. I find that admittedly the petitioner is husband of
O.P. No. 2, though there is no child born out of the wedlock. It
is also undisputed that O.P. No. 2/wife has been living at her
home. There is rival claim between the parties in regard to
living of O.P. No. 2/wife from her petitioner-husband. As per the
O.P. No. 2/wife, she is living separately at her maike on account
of demand of dowry and cruelty having been committed by the
husband-petitioner, whereas the husband is claiming that there
was no reason to the O.P. No. 2/wife to live separately from his
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matrimonial home.
12. However, I find that the husband-petitioner has
never filed any matrimonial suit for restitution of conjugal
rights. If the O.P. No. 2/wife had left the matrimonial home
without any rhyme and reason, the petitioner-husband had cause
of action to file matrimonial suit under Section 9 of Hindu
Marriage Act for restitution of conjugal rights. But the
petitioner-husband has not taken any such legal recourse and in
stead, he has filed divorce petition under Section 13 of Hindu
Marriage Act. In fact, this divorce petition was decreed ex parte
in favour of the petitioner/husband for which, as per statement
of learned counsel for the parties, O.P. No. 2/wife has filed one
miscellaneous case before the Family Court for setting aside the
ex-parte divorce order in which the husband-petitioner is still to
appear before the Family Court. On the other hand, it also
transpires from the evidence on record that one criminal case
was filed by the O.P. No. 2/wife under Section 498A IPC against
the husband-petitioner, though as per claim of the husband-
petitioner, that case has been closed by the police finding it
untrue and even protest petition filed by the O.P. No. 2/wife was
dismissed after pre-cognizance inquiry.
13. However, the fact remains that the petitioner-
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husband has not taken any step towards restitution of conjugal
rights and the wife/O.P. No. 2 is still contesting the ex-parte
divorce which shows that she is willing to live with her
husband, but husband is not willing to keep his wife. As such,
statement of learned counsel for the petitioner that O.P. No.
2/wife has left the matrimonial home without any rhyme and
reason does not persuade the Court to hold that she had no
reason to live separately and she was not being neglected by the
husband-petitioner.
14. As far as quantum of income is concerned, it
transpires from the evidence on record that admittedly the
husband-petitioner does private tuition, though his monthly
income is Rs. 3,000/-. However, the fact of the case shows that
the petitioner is an able-bodied and educated person, he can be
presumed to be earning at least minimum wages and even as per
the rate of Rs. 500/- per day, his monthly income comes to Rs.
15,000/- and out of Rs. 15,000/- he is required to maintain his
wife.
15. However, I find that quantum of maintenance
awarded by learned Family Court in favour of O.P. No. 2/wife is
somewhat on the higher side. Hence, award of Rs. 5,000/- per
month towards maintenance to O.P. No. 2/wife will meet the
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ends of justice.
16. Hence, the present petition is allowed in part
modifying the order of learned Family Court that the petitioner-
husband will pay Rs. 5,000/- per month to his wife/O.P. No. 2
towards her maintenance. This order will be applicable from the
date of filing of the petition i.e. 22.01.2020.
17. Accordingly, the present petition stands disposed
of.
18. Trial Court Record be sent back to the Court
below forthwith with a direction to the learned Family Court to
execute the order without any further delay.
(Jitendra Kumar, J.)
shoaib/-
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