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2008 DIGILAW 1162 (JHR)

Uma Pada Rewani v. State of Jharkhand

2008-09-29

DILIP KUMAR SINHA

body2008
JUDGMENT D.K. Sinha, J. 1. Petitioner Uma Pada Reward has invoked the extraordinary writ jurisdiction of this Court for issuance of an appropriate writ(s)/order(s) direction(s) for quashment of the order dated 30.5.2007, passed by the Principal Judge, Family Court, Dhanbad in M.P. Case No. 256 of 2006 in a proceeding under Section 125 of the Code of Criminal Procedure, whereby the Deputy Personnel Manager of Baijna Colliery, Mugma Area of M/s. E.C.L., Dhanbad was directed to stop payment of his one-third of the retiral benefits since the petitioner retired on 1.6.2007 as Coal Cutting Machine Mazdoor. 2. According to the counsel for the petitioner, the provisions of the Coal Mines Gratuity Act and the Coal Mines Provident Fund Act do not permit stoppage of payment of such retiral dues or any part thereof. 3. The learned Counsel explained that what a Principal Judge of a Family Court in a proceeding under Section 125 of the Code of Criminal Procedure can do is only to allow maintenance to the applicant seeking maintenance in such proceeding. In the instant proceeding, petitioner was ready to pay maintenance to the tune of Rs. 1000/-per month to his wife-respondent No. 2, who was living in the ancestral house of the petitioner and utilising the usufruct yield from the field of the petitioner and she was not at all in need of maintenance. 4. The petitioner had already appeared in the said proceeding under Section 125 of the Code of Criminal Procedure before the Principal Judge, Family Court, Dhanbad and expressed his readiness and willingness by filing 'show cause' to pay maintenance to his wife-respondent No. 2 at the rate of Rs. 1000/- per month. It was not the case that the petitioner had refused to pay any amount to his wife-respondent No. 2 as maintenance so as to call for interference of the Principal Judge. Family Court, Dhanbad by recording an order for attachment of the provident fund and gratuity of the petitioner, which was beyond the competence and jurisdiction of the Principal Judge as laid down under Section 7 of the Family Courts Act, 1984. 5. Family Court, Dhanbad by recording an order for attachment of the provident fund and gratuity of the petitioner, which was beyond the competence and jurisdiction of the Principal Judge as laid down under Section 7 of the Family Courts Act, 1984. 5. Finding of the Principal Judge, Family Court, Dhanbad as recorded on 30.5.2007 in M.P. Case No. 256 of 2006 was based upon erroneous consideration and to quote him, Having heard the learned Counsel of both the sides, I am of the opinion that there is a provision in law regarding attachment before the judgment but at the same time, the Court cannot stop the entire payment/retirement benefits of the opposite party even if the Court will grant maintenance amount in this case, it will not be greater than one-third of the total income of the opposite party, hence, Deputy Personnel Manager of Baijna Colliery, Mugma Area, P.S. Nirsa, District-Dhanbad, a Colliery of E.C.L. is directed to stop one-third of the retirement benefits in case Uma Pada Rewani is going to retire A until further order of this Court. 6. Learned Counsel interpreted that the impugned order as aforesaid suffers illegality as is barred by Jurisdiction of the Principal Judge under Section 7(2)(a) of the Family Courts Act, 1984. 7. As per Clause 2(a) of Section 7 of the Act, the Family Court shall have and exercise jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order of maintenance of wife, children and parents) of the Code of Criminal Procedure. Section 7(2)(b) however relates to conferment of any additional jurisdiction on the Family Courts by other enactments. This provision is in the nature an enabling provision by which Legislature can enlarge the Court's jurisdiction. No provision has been laid down that Principal Judge while exercising his jurisdiction under Chapter -IX of the Code of Criminal Procedure can pass an order for attachment of the retiral benefits as the power of attachment is not vested with the Judicial Magistrate, 1st Class in the proceeding under Section 125 of the Code of Criminal Procedure. 8. Heard Mr. P.K. Mukhopadhyay, the learned Counsel on behalf of the petitioner, Mr. Mahesh Tewari, the learned Counsel on behalf of the respondent No. 2 as also Mr. H.K. Mehta, learned GA on behalf of the respondent-State. 9. 8. Heard Mr. P.K. Mukhopadhyay, the learned Counsel on behalf of the petitioner, Mr. Mahesh Tewari, the learned Counsel on behalf of the respondent No. 2 as also Mr. H.K. Mehta, learned GA on behalf of the respondent-State. 9. Having regard to the facts and circumstances of the case, I find that the petitioner has assailed the order impugned dated 30.5.2007, passed by the Principal Judge, Family Court, Dhanbad on the ground that the Principal Judge was not within his competence and jurisdiction to stop the provident fund as well as gratuity to the extent of one-third of his total retiral benefits as the same was barred by the provisions of the Coal Mines Gratuity Act and the Coal Mines Provident Fund Act as discussed above. But the counsel for the respondents failed to produce any statute or any rule in support of the fact in this regard that the Principal Judge, Family Court was well within his competence to exercise his jurisdiction to record an order for attachment of one-third of the retiral dues before the judgment in a proceeding under Section 125 of the Code of Criminal Procedure beyond the scope of Chapter IX of the Code of Criminal Procedure as imported under Section 7(2)(a) of the Family Courts Act, 1984. 10. I, therefore, find and hold that the Principal Judge, Family Court, Dhanbad acted beyond his jurisdiction in recording the order of stopping one-third of the total retiral benefits including, the provident fund and gratuity of the petitioner on his retirement, which is unsustainable under law in the backdrop as well that the petitioner had expressed his readiness and willingness to pay maintenance amount to the tune of Rs. 1000/- per month to his wife-respondent No. 2 subject to satisfaction of the Family Court. I further find that the Principal Judge. Family Court even did not observe the mandatory provisions of law as contained in Section 9 of the Act by taking an initiative for settlement of differences between the parties who are none other than husband and wife. Accordingly, I find merit in this writ petition and the order impugned dated 30.5.2007, passed by the Principal Judge Family Court. Dhanbad in M.P. Case No. 256 of 2006 is quashed with a direction to pass a reasoned order within the ambit of Section 7(2)(a) of the Family Court Act, 1984. Accordingly, I find merit in this writ petition and the order impugned dated 30.5.2007, passed by the Principal Judge Family Court. Dhanbad in M.P. Case No. 256 of 2006 is quashed with a direction to pass a reasoned order within the ambit of Section 7(2)(a) of the Family Court Act, 1984. Accordingly, this writ petition is allowed with the observation aforementioned. Petition allowed.