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2007 DIGILAW 1567 (PAT)

Diwakar Sinha v. State Of Bihar

2007-09-24

MIHIR KUMAR JHA

body2007
Judgment 1. Heard Counsel for the parties. 2. In this application, the order, dated 10.02.2005 passed by the Family Court in Trial No. 37 of 2005 has been questioned by the petitioner on the ground that the Family Court, Siwan had no jurisdiction to pass the said order inasmuch as the Opposite Party No. 2, the wife, was not residing at Siwan nor did the petitioner reside at Siwan nor even any of the requirement u/s. 126(i) of the Code of Criminal Procedure was fulfilled. 3. Counsel for the petitioner, in this regard, has placed reliance on a judgment of the Apex Court in the case of Vijay Kumar Prasad V/s. the State of Bihar & Another, 2004 5 SCC 196 where in it has been held that a mere fleeting presence will not create jurisdiction in the Court for the purposes of initiating a proceeding u/s. 125 of the Code of Criminal Procedure. He, in this regard, urges that from the reading of the application filed by the Opposite Party no. 2 it would be clear that she had only claimed that she had gone to visit her mamas place and, therefore, on this pretext alone she could not have maintained a proceeding in the district of Siwan. 4. Mr. Ashok Jang Bahadur, Counsel for the Opposite Party No. 2, however, correctly draws my attention to an important fact on perusal of which it can not be said to be a case of fleeting presence because in paragraph no. 17 it was clearly stated that she had been forcibly driven away from her sasural in the district of Muzaffarpur and had to take shelter in her mamas house in the district of Siwan as she had no resource to sustain herself at Gopalganj. Therefore, it is clear that the complainant after being forcibly thrown away was staying at Siwan with her mama Shri Jeetendra Nath Verma and as such the Siwan Court had also the jurisdiction. The reliance placed on the judgment of Vijay Kumar Prasad (Supra) is thus totally misconceived because in that case the complainant-wife had not been driven away and/or subjected to cruelty at any other place except in her sasural. The alleged plea of fleeting presence of the complainant thus must fail. 5. Reverting back, Mr. The reliance placed on the judgment of Vijay Kumar Prasad (Supra) is thus totally misconceived because in that case the complainant-wife had not been driven away and/or subjected to cruelty at any other place except in her sasural. The alleged plea of fleeting presence of the complainant thus must fail. 5. Reverting back, Mr. Bahadur, learned Counsel for the Opposite Party No. 2 has further submitted that the whole issue of jurisdiction infact was also earlier raised on behalf of the petitioner in respect of the same impugned order which is the subject matter of the present application granting maintenance in favour of the Opposite Party No. 2. This Court finds that infact the same order, dated 10.02.2005 was earlier assailed unsuccessfully by the petitioner in Criminal Misc. No. 9199 of 2005 which was dismissed as withdrawn on 20.12.2005. Mr. Bahadur in this context has also drawn my attention to paragraphs 1, 7 and 8 of the application which have been very fairly annexed by the petitioner. Paragraphs 1, 7 and 8 reads as follows: "1. That, this application on behalf of the sole petitioner above named for quashing the order dated 10.2.2005 passed by Sri G.C. Gupta, Learned Judicial Magistrate, Siwan in Misc. No. 79/98. Tr. No. 37/05 whereby he has been placed to fix a sum of rupees four thousand per month as interim maintenance from the date of the application dated 23.08.2004 to be paid within ten days of the next month due and also ordered to pay the arrears maintenance for the last four months at the rate of Rs. 4000.00 per month is directed in the following circumstances. 7. That, the learned Court below had no jurisdiction to try any case and pass orders inasmuch as the Opposite Party No. 2 purposely with an oblique motive gave false address of Siwan even though she permanently resides at Gopalganj where she admittedly had been practicing as an Advocate since 1999. 8. That, thus since opposite party no. 2 is permanently residing at Gopalganj where she has been practicing as an Advocate and she was married while she was staying with her uncle at Muzaffarpur or at Gopalganj where the opposite party no. 2 permanently resides, only has the jurisdiction to hold an enquiry or to try any case. Thus, Muzaffarpur Court has the jurisdiction as admittedly the marriage of opposite party no. 2 permanently resides, only has the jurisdiction to hold an enquiry or to try any case. Thus, Muzaffarpur Court has the jurisdiction as admittedly the marriage of opposite party no. 2 was solemnized at Muzaffarpur where she was residing with her uncle and her in-laws place also is at Muzaffarpur or where opposite party no. 2 last resided. At present, only these two Courts have jurisdiction to try the present case. Thus, the order passed by the learned Judicial Magistrate of Siwan has absolutely no jurisdiction to try the present case. Thus, the impugned order passed by the learned Magistrate is completely without jurisdiction." 6. Counsel for the Opposite Party No. 2, therefore, on the strength of aforementioned pleadings of the petitioner submits that earlier when the same order was challenged even the question of jurisdiction was specifically raised by the petitioner in that application, Criminal Misc. No. 9199 of 2005 and yet this Court did not interfere and the petitioner had withdrawn his application leading to affirmation of the impugned order. It is thus contended that the second quashing application against the said order is not maintainable. Mr. Ashok Kumar Choudhary, learned Counsel appearing on behalf of the petitioner in reply submits that it is true that the order, dated 10.02.2005 was earlier assailed by the petitioner in Criminal Misc. No. 9199 of 2005 but that was confined only to the portion of quantum of grant of maintenance and that it had nothing to do with the question of jurisdiction. He further submits that the question of jurisdiction having been separately raised by the petitioner in the Court below, its rejection had given a fresh cause of action and as such he had filed a separate quashing application. 7. The aforementioned submissions made on behalf of the petitioner in the first blush seem to be very attractive but on a closure look, the same can not be approved for the simple reason that if the prayer made in this application is allowed and it is held that the Court below which had passed the order, dated 10.02.2005 had no jurisdiction to pass such order in view of the restriction u/s. 126 of the Code of the Criminal Procedure, the entire order granting a sum of Rs. 4,000.00 per month to Opposite Party No. 2 with effect from 23.08.2004 will have to be necessarily set aside. 4,000.00 per month to Opposite Party No. 2 with effect from 23.08.2004 will have to be necessarily set aside. It is well settled that if the Court had no jurisdiction, the order passed by it will be nullity in the eyes of law. However, in view of the fact that this Court on an earlier occasion refused to set aside the same order, dated 10.02.2005 at the instance of the petitioner by an order dated 20.12.2005 in Criminal Misc. No. 9199 of 2005 and learned Counsel for the petitioner had himself sought permission to withdraw that application and application was dismissed as withdrawn, any order passed by this Court taking a contrary view on any ground whatsoever will infact amount to review of the earlier order of this Court. Infact once such an order was passed, the order dated 10.02.2005 had merged with the order of this Court, dated 20.12.2005 in Criminal Misc. No. 9199 of 2005. In that view of the matter, it will not be prudent on my part to take a different view in respect of the same order specially when I have also come to a conclusion that on the given facts it is not a case of fleeting presence in view of the averments made by the Opposite Party No. 2 in her application. Accordingly, this application has to be dismissed. 8. My attention has been drawn by the Counsel for the Opposite Party No. 2 that the Court below had granted maintenance of a sum of Rs. 4,000.00 on 23.08.2004 and it is now more than three years that against the amount so awarded, not even a single paise has been paid to the wife, the Opposite Party no. 2 by the petitioner. He has further submitted that once the earlier application of the petitioner, being Criminal Misc. No. 9199 of 2005 had been dismissed as withdrawn, he had to comply with the order of the Family Court and pay the amount but he has refused to pay the amount on the ground of pendency of this second application assailing the same impugned order. In such circumstances, the Court below is directed to ensure that its order, dated 10.12.2005 is complied by the petitioner. The Court below will take all possible recourse including croecive measures for ensuring the payment of arrears and current amount of the maintenance. In such circumstances, the Court below is directed to ensure that its order, dated 10.12.2005 is complied by the petitioner. The Court below will take all possible recourse including croecive measures for ensuring the payment of arrears and current amount of the maintenance. Such action on the part of the Court below for ensuring payment to the Opposite Party No. 2 must be taken even expeditiously and the amount, both arrears and current, must be realized from the petitioner within a period of two months from the date of receipt/production of a copy of this order.