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2007 DIGILAW 644 (PAT)

Bachcha Prasad Singh @ Bachcha Prasad Sinha. v. Ram Singhasan Devi

2007-03-29

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner has come to this Court against the order dated 1.11.2006 passed by the Principal Judge, Family Court, Patna in Maintenance Case No. 50(M)/06 under Sec.125 of the Code of Criminal Procedure, by which the husband-petitioner has been directed to pay Rs. 2500.00 per month by way of interim maintenance to the wife-opposite party no. 1. 3. The aforesaid Maintenance Case was filed by opposite party no. 1 who is admittedly the legally wedded wife of the petitioner stating that after her marriage with the petitioner, two sons, namely, Om Prakash Singh and Jai Prakash Singh were born. Thereafter the petitioner brought a concubine, namely, Pushpa Kumari and left looking after her and as such she went back to village home at Sorampur where she was not allowed to remain and she migrated to the house of father-in-law of her second son, Jai Prakash Singh. It was further stated that the petitioner has large sources of income and thus claim of Rs. 50.000.00 per month was made as maintenance and that of Rs. One lac as litigation expenses. It was further pointed out that said Pushpa Kumari earns Rs. 25,000/-per month as a teacher. 4. The stand of the petitioner in this case is that the case has been filed at the instance of two sons of the petitioner by the opposite party no.1 for the purpose of blackmailing the petitioner, his second wife and their sons. It is stated that the second marriage of the petitioner took place with the consent of the opposite party no.1 and two sons and daughters were born from that marriage. It is further stated that ail the ancestral and self acquired properties of the petitioner were being managed by the opposite party no.1 and her two sons, out of whom the elder Om Prakash Singh is in Government service in the Department of Health, Government of Bihar. It is further stated that ail the ancestral and self acquired properties of the petitioner were being managed by the opposite party no.1 and her two sons, out of whom the elder Om Prakash Singh is in Government service in the Department of Health, Government of Bihar. It is further stated in the family settlement deed (Annexure-5) that family arrangement was made between the petitioner and four sons in the year 1999, in terms of which the entire lands, ancestral as well as self acquired, in village Sorampur were allotted to two sons from the first wife, opposite party no.1 and in the said document which was executed on 3.1.1999 and signed by the petitioner and his four sons, it was agreed that the petitioner and two sons by opposite party no.1 had 1/3rd share each in the said property, but the petitioner has neither taken anything from the income of the said properties at any stage and in view of the same the sons were required to maintain the liability of the opposite party no. 1 even after his death since his share will also go to them after his death. His further case is that admittedly the income of the agricultural land at the ancestral village Sorampur was 25,000.00 per month and thus, that was sufficient income for the maintenance of the opposite party no.1. The further case is that the petitioner is getting only Rs. 8300.00 per month after his retirement as pension and he is aged about 73 years whereas the age of opposite party no.1 is 83 years and she is living separately with her two sons. 5. Learned counsel for the petitioner submitted that in view of the aforesaid family arrangement there was no occasion for the opposite party no.1 to have filed any application for maintenance and the said facts having been placed before the court below, no order giving interim maintenance could have been passed by the court below since admittedly sufficient provision has been made for the upkeep and maintenance of the opposite party no. 1 out of the lands of the ancestral village. It is further submitted by the learned counsel that once family settlement is arrived at the same acquires certain sanctity and the courts ought not to interfere with the same or put terms and conditions which, in effect, goes against the terms of the family arrangement. 1 out of the lands of the ancestral village. It is further submitted by the learned counsel that once family settlement is arrived at the same acquires certain sanctity and the courts ought not to interfere with the same or put terms and conditions which, in effect, goes against the terms of the family arrangement. It is submitted that there is a clear acceptance of the fact in the said family arrangement that the petitioner was not taking anything out of the lands in the ancestral village and the entire income from the same was being managed and retained by two sons from the opposite party no. 1 and thus, although notionally the petitioner had retained 1/3rd share in the said property but it was made clear that the same would be used for taking care of the liability of petitioner during his lifetime and also after his death and it was evident that the said liability would include the maintenance of his first wife, opposite party no. 1. It is submitted that since the admitted case of opposite party no. 1 is that the income from the said lands are to the tune of Rs. 25,000.00 per month, therefore, the share of the petitioner in the said income comes to Rs. 8,300.00 per month approximately and said sum was sufficient for the maintenance and upkeep of the opposite party no.1 by the two sons who had in the said deed of family settlement agreed to take care of all the liabilities of the petitioner in this regard. Learned counsel submits that the court below has totally failed to construe in proper light the said family settlement made as early as on 3.1.1999 and ought not to have entertained the petition for maintenance under Sec.125 Cr.RC. nor directed any interim maintenance in the light of the sufficient provisions made by the petitioner with respect to the maintenance of opposite party no. 1. Learned counsel further submits that the petitioner has the liability of his daughter born from the second marriage who is of marriageable age and the same has to be done within the limited means at his dispose, and thus nothing should be ordered to be paid by him to the opposite party no. 1. 6. 1. Learned counsel further submits that the petitioner has the liability of his daughter born from the second marriage who is of marriageable age and the same has to be done within the limited means at his dispose, and thus nothing should be ordered to be paid by him to the opposite party no. 1. 6. In support of his aforesaid submissions with respect to the sanctity of the family settlement and the fact that it can be changed only by the consent of the parties, learned counsel relies upon a decision of the Supreme Court in the case of Hansa Industries Pvt. Ltd. & Ors. vs. Kidarsons Industries Pvt. Ltd. : 2006(8) Supreme 830 , in para 9 of which it has been observed as follows: "At the threshold we may observe that the exercise undertaken by the High Court was with a view to give effect to the terms of settlement reached between the parties. It is trite that the terms of settlement reached between the parties shall ordinarily not be modified except with the consent of the parties. In the instant case, it has not been argued by anyone that the terms of settlement with which we are concerned are either illegal as being opposed to any statute or that it is hit by impossibility of performance and, therefore cannot be performed or that the settlement was not reached bona fide." 7. It is further submitted on the said basis that the petitioner is willing to give an undertaking or execute any document so that his 1/3rd share in the properties in the ancestral village Sorampur can be utilised for the upkeep of opposite party no. 1 during her life time. 8. Learned counsel for the opposite party on the other hand sought to support the order of interim maintenance granted by the court below on the ground that there is neither any jurisdictional error in the same nor the Court has committed any error of facts or law while granting the interim maintenance. It is submitted that the Court has not gone into the issue of the other sources of income with respect to the petitioner but has relied upon the admitted position that the petitioner is getting pension of Rs. It is submitted that the Court has not gone into the issue of the other sources of income with respect to the petitioner but has relied upon the admitted position that the petitioner is getting pension of Rs. 8534/- per month and out of the same a reasonable amount has been granted as interim maintenance to the opposite party no.1 on the basis of the well settled principles of law. It is further submitted that this Court in its revisional jurisdiction does not interfere with any order of the court below unless there is a jurisdictional error. In support of the same, learned counsel relies upon a decision of this Court in the case of Prabhat Kumar Pandey & Ors. vs. Banwari Yadav : 1991(2) PLJR 93, in para-11 of which it has been laid down as follows: "In Prabhu Dayal Singh and Others vs. Basudeo Singh and Others, 1985 BBCJ 285 , it was laid down by a Division Bench of this court that "A party is not entitled to raise the question of fact in a civil revision petition". It was also held therein that, "In a civil revision petition, Counsel for the petitioner can argue only about jurisdictional error." 9. This Court initially, in order to resolve the dispute between the parties, had directed their personal appearance in the Court and in fact the petitioner and opposite party no.1 appeared and were personally heard in this regard before this Court. The petitioner had reiterated the fact that on the basis of the family arrangement which he had entered into on 3.1.1999, he had handed over all the properties in the village whether ancestral or self acquired to the two sons born from his marriage with opposite party no.1. There was clear stipulation that his 1/3rd share in the property will be utilised to meet his liabilities towards his family which evidently included the taking care of his first wife opposite party no.1 who was living with her sons and specially with his second son. There was clear stipulation that his 1/3rd share in the property will be utilised to meet his liabilities towards his family which evidently included the taking care of his first wife opposite party no.1 who was living with her sons and specially with his second son. The petitioner further stated that he was suffering from various ailments for which he was regularly treated at Patna and also at Vellore and that he was practically blind and not in a position to take over the cultivation work with respect to 1/3rd share as per the said family arrangement and he is prepared to take any step which is acceptable to the other side including transferring the same in the name of opposite party no.1 so that she may maintain herself throughout her lifetime. He further stated that there was no dispute in the family for such a long period of time particularly after the family arrangement had been made on 3.1.1999 but for ulterior motive the opposite party no.1 has been instigated by her two sons specially the second son in order to grab further amounts from the petitioner which was not justified and for which family arrangement had already been made. 10. So far as the opposite party no. 1 was concerned she appeared to be a very old lady and she was unable to even understand as to what was going on in the Court. On the queries made by the Court she could only answer the same after she was repeatedly prompted by her second daughter-in-law who had accompanied her to the Court. The opposite party no.1 had stated that she was staying at Jakkanpur with her second son, Jai Prakash Singh and further she expressed that she wants to live with her second son and for her maintenance she needs 5,000-10,000.00 rupees for the purpose of purchase of medicines, milk, fruits etc. 11. The opposite party no.1 had stated that she was staying at Jakkanpur with her second son, Jai Prakash Singh and further she expressed that she wants to live with her second son and for her maintenance she needs 5,000-10,000.00 rupees for the purpose of purchase of medicines, milk, fruits etc. 11. On a consideration of the entire facts and circumstances of the case specially the provisions made in the family arrangement deed which has been signed by the petitioner and all his four sons born from both the marriages, it is evident that attempt has been made to resolve the family dispute by putting his two sons in exclusive possession over the entire property in the ancestral village although 1/3rd share had been retained by the petitioner in his name which was to be utilised by his two sons from the first marriage during his lifetime, and thereafter, for meeting his family liability which would include the liabilities of the petitioner towards his first wife. Even otherwise as rightly pointed out by the learned counsel for the petitioner Sec.125(1)(d) of the Code of Criminal Procedure, 1973 provides that if any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, he may be directed by the Court to make a monthly allowance for the maintenance of his such father or mother. This aspect of the matter has not at all been adverted to by the court below while considering the issue for payment of interim maintenance. The admitted position is that the elder son of the first wife is a Government servant and thus he is definitely in a position to maintain his mother and further since the entire property of the ancestral village had been handed over to the two sons who were enjoying the fruits of the said property. The said aspect of the matter also ought to have been kept in mind while passing the order of interim maintenance. However, since the order is interim in nature, this Court would not like to record any finding in this regard and it will be open to the parties to lead their evidence on the point at the stage of consideration of the final maintenance. 12. However, since the order is interim in nature, this Court would not like to record any finding in this regard and it will be open to the parties to lead their evidence on the point at the stage of consideration of the final maintenance. 12. However, on a consideration of the entire facts and circumstances of the case, this Court is of the view that an interim maintenance of Rs. 1000.00 (one thousand) would be sufficient to meet the needs of the opposite party no.1 who is a very old lady and is admittedly staying with her second son and whose first son is also very well in a position to maintain her whereas the petitioner himself is an old and infirm person living on his pension and he has additional liability of marriage of his daughter born from the second marriage; it must be remembered that while the second marriage itself would be without legal sanctity but the children born out of said marriage have been conferred legitimacy by the Hindu Marriage Act. 13. In the aforesaid facts and circumstances, the revision application is partly allowed and the petitioner is directed to pay an amount of Rs. 1000/-(one thousand) per month to the opposite party no. 1 as interim maintenance with effect from 1.11.2006 i.e. the date of the order of the court below.