Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 577 (JHR)

Manshu Mahto @ Nepal Mahto v. State of Jharkhand

2008-06-10

DILIP KUMAR SINHA

body2008
JUDGMENT D.K. Sinha, J. 1. The petitioner has preferred Criminal Revision under Section 19(4) of the Family Court Act against the order impugned dated 7.2.2005 passed by the Principal Judge, Family Court. Dhanbad in M.P. Case No. 96 of 2004 whereby the learned Principal Judge while allowing the petition filed on behalf of the O.P. No 2 in a proceeding under Section 125, CrPC enhanced the amount of maintenance suo motu without consent of the petitioner and beyond the scope of relief as sought for. 2. Short fact of the case was that the O.P. No. 2 Achho Devi admitted to be the wife of the petitioner initiated a proceeding under Section 125, CrPC demanding monthly maintenance to the tune of Rs. 1000/- from the petitioner. Though it was admitted by the petitioner husband in respect of a criminal case in which both the parties entered into compromise in Criminal Appeal No. 88 of 1994 with certain terms and conditions laid down in the compromise petition and the same was disposed of by the 1st Additional Sessions Judge, Bokaro on 23.1.2003. In the proceeding under Section 125, CrPC vide M.P. No. 96 of 2004 the O.P. No. 2 Achho Devi demanded monthly maintenance only @ Rs. 1,000/- to be deducted from the salary of the petitioner and at no point of time such amount as contained in the prayer of the proceeding was amended, according to the learned Counsel for the petitioner, for the enhancement of Rs. 1000/- being the monthly maintenance amount as sought for. 3. The learned Counsel submitted that pursuant to the compromise arrived at between the parties in Criminal Appeal No. 88 of 1994 the petitioner continued paying maintenance @ Rs. 1,000/- on monthly basis by sending the amount to the given saving account number of the O.P. No. 2 but as she changed the account number, there was brake in continuity of payment which prompted the O.P. No. 2 to initiate a proceeding under Section 125, CrPC. Neither the petitioner nor the O.P. No. 2 preferred any objection against the order passed by the Additional Sessions Judge, Bokaro in Cr. Appeal No. 88 of 1994 as to its validity arrived on the compromise entered into between the parties. Neither the petitioner nor the O.P. No. 2 preferred any objection against the order passed by the Additional Sessions Judge, Bokaro in Cr. Appeal No. 88 of 1994 as to its validity arrived on the compromise entered into between the parties. In her petition under Section 125, CrPC also the O.P. No. 2 claimed 1.000/- rupees per month as maintenance and not exceeding that but the learned Principal Judge. Family Court, Dhanbad in utter disregard to the settled principle of law, awarded a sum of Rs. 1200/- per month arriving on a wrong conclusion that the petitioner was expected to pay Rs. 1200/- per month to the O.P. No. 2 the learned Counsel submitted. 4. When the matter was agitated before this Court, comment of the Principal Judge, Family Court, Dhanbad was called for by the order dated 16.2.2006 and pursuant to that the Principal Judge, Dhanbad (Mr. H.P. Chakravarty) vide his letter No. 117 dated 3.3.2006 reported that the impugned order was passed by his predecessor Court and he was unable to comment in this regard. By filing supplementary affidavit, the petitioner exhorted that he had never expressed willingness to pay a sum of Rs. 1200/- per month to the O.P. No. 2 in a proceeding under Section 125, CrPC as against the demand of Rs. 1.000/- per month. By filing another supplementary affidavit dated 23.3.2007, the counsel for the petitioner submitted that the order dated 7.2.2005 passed by the Principal Judge, Family Court in M.P. Case No. 206 of 2004 was communicated to his employer who has been deducting Rs. 1200/- per month from his salary from the month of September, 2005 till the affidavit though the petitioner had expressed his willingness to pay the agreed amount of maintenance to the tune of Rs. 1.000/- to the O.P. No. 2. 5. A counter-affidavit was filed on behalf of the O.P. No. 2 Achho Devi in which it was stated that an attempt was made by the Principal Judge, Family Court, Dhanbad for reconciliation between the parties and pursuant to that the petitioner agreed to pay Rs. 1200/- without undue influence and he had given his personal oral undertaking to pay Rs. 1200 per month and the order was passed by the learned Principal Judge upon having been satisfied with the willingness expressed by the petitioner. 6. 1200/- without undue influence and he had given his personal oral undertaking to pay Rs. 1200 per month and the order was passed by the learned Principal Judge upon having been satisfied with the willingness expressed by the petitioner. 6. Finally, it was submitted on behali of the O.P. No. 2 that the present Criminal Revision in its present form was not maintainable. The submission of the petitioner that the impugned order was passed on wrong conclusion was without any basis. The learned Counsel further pointed out that the petitioner never opt to file any amendment/modification or objection petition for the removal of confusion from the impugned order and therefore, the present Criminal Revision was unsustainable. The amount of Rs. 1200/- per month as awarded was reasonable, arrived at after reconciliation with the intervention of the learned Court, which did not call for interference and hence this revision may be rejected. 7. Having regard to the facts and circumstances of the case, I find that the learned Principal Judge, Family Court, Dhanbad by the order dated 7.2.2005 after holding the reconciliation being a success by observing that the husband-petitioner Manshu Mahto @ Nepal Mahto expressed his willingness in paying a sum of Rs. 1200/- per month to his wife Achho Devi as maintenance which stood reciprocated I by her acceptance. Admittedly, such finding and observation of the Court was never disputed by the petitioner herein by filing either protest or amendment or modification petition before the Principal Judge challenging that he had never expressed his willingness to pay a sum of Rs. 1200/-per month. 8. Similarly there is no documentary evidence on the record in support of the contention that the O.P. No. 2 Achho Devi had demanded Rs. 1200/- per month maintenance by bringing about amendment in the petition of the proceeding. On the other hand, 1 find from the petition under Section 125, CrPC filed by the O.P. No. 2 Achho Devi that she had demanded Rs. 1,000/- per month only being her maintenance and at no point of time any amendment petition was filed seeking enhancement in the amount. Now the question arises as to when the petitioner in a proceeding under Section 125, CrPC has demanded only Rs. 1,000/- then how it can be enhanced to the extent of Rs. 1200/-. 1,000/- per month only being her maintenance and at no point of time any amendment petition was filed seeking enhancement in the amount. Now the question arises as to when the petitioner in a proceeding under Section 125, CrPC has demanded only Rs. 1,000/- then how it can be enhanced to the extent of Rs. 1200/-. Yet, this condition was subject to waiver by the Court in view of the written and expressed consent of the petitioner-husband before the Principal Judge showing goodwill gesture to pay more amount what was demanded by the wife. 9. In the circumstances, the order impugned dated 7.2.2005 passed in M.P. No. 96 of 2004 by the Principal Judge. Family Court, Dhanbad cannot sustain and accordingly, it is set aside with the direction to pass an appropriate order within three months after affording opportunity to both the parties and in the meantime the petitioner shall continue paying @ Rs. 1,000/- per month since June. 2008 subject to the final order passed by the Principal Judge, Family Court, Dhanbad in this case. The petitioner is further directed to pay the arrears preferably in two installments to the satisfaction of the Principal Judge, Family Court. 10. This petition is, accordingly, allowed with the above observation. Petition allowed.