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2010 DIGILAW 2333 (PAT)

Ranjan Mishra v. State Of Bihar

2010-10-25

KISHORE K.MANDAL

body2010
JUDGEMENT 1. Petitioner is aggrieved by order dated 5.2.2008, passed by learned Principal Judge, Family Court, Gaya in Misc. Case No. 70/05/86/03, whereby on a consideration of materials on record including the evidence adduced by the parties, it has been found that O.P. no. 2 (Asha Devi) is legally-wedded wife of the petitioner (husband) who has neglected her and she is, therefore, entitled to maintenance to be paid to her by the petitioner. 2. At this stage, this court notices that Cr. Revision No. 262/08 was preferred by the present O.P. no. 2 against the same order making a grievance that the order does not set out the date from which maintenance under the impugned order shall be payable. In the said case, notices were issued to O.P. no. 2 which was validly served but the petitioner (husband/O.P. no.2) did not appear. Accordingly said matter was disposed of by this Court by order dated 23.9.2010. Relevant portion whereof reads as under: "Learned counsel for the petitioner submits that the order impugned does not indicate as to from which date the amount of maintenance shall be payable. He submits that in view of the provisions contained under Section 125 Cr.P.C, the amount shall be payable with effect from the date of filing of the application. This Court finds force in the submission of learned counsel for the petitioner. It is thus clarified that the payment of maintenance as directed under the impugned order shall be payable to the petitioner with effect from the date of filing of the application." 3. While assailing the order, learned counsel for the petitioner states that as per the case of the applicant-opposite party no. 2 herself, she was married to petitioner in the year 1974 and thereafter she remained with him for only two years in course whereof she gave birth to a son. Thereafter she started living at the house of the father of the petitioner in Gaya who used to maintain her. It is the contention of the petitioner that after about 25 years of her alleged marriage the present case has been lodged seeking maintenance. It is the petitioners case that he was married with one Shakuntala Devi in the year 1970 and the wedlock had produced four offsprings. Counsel for the petitioner further submits that all the official documents would indicate that Shakuntala Devi is the wife of the petitioner. It is the petitioners case that he was married with one Shakuntala Devi in the year 1970 and the wedlock had produced four offsprings. Counsel for the petitioner further submits that all the official documents would indicate that Shakuntala Devi is the wife of the petitioner. The name of O.P. no. 2 does not figure in those documents as the wife of the petitioner It is thus the contention that the order impugned is in the teeth of materials on record and thus requires to be interfered with. It is also contended that maintenance amount of Rs.3000/- fixed under the order impugned is on the excessive side considering the fact that petitioner was getting only Rs. 12000/-to 13000/-. 4. A counter affidavit has been filed on behalf of O.P. no. 2 (Asha Devi). Learned counsel while supporting the order impugned, submits that parties were allowed to adduce oral evidence and bring on record their respective witnesses. The applicant-wife produced five witnesses which include the son Jeetesh Mishra (P.W. 5) produced from the wedlock as also P.W. 4 who happens to be own Mama of the husband (petitioner). It is stated that finding of fact are based on a correct and legal appraisal of the evidence brought on record by the parties which does not require any interference. 5. I have heard the parties and perused the impugned order and other materials available on record. Learned trial court has found that ali the five witnesses adduced on behalf of applicant-wife consistently supported her case about her marriage with petitioner in the year 1974 and the birth of a son (P.W. 5) from the said wedlock. St appears from their evidence that applicant-wife was living at Gaya with her father-in-law who used to maintain her. It further appears therefrom that the father-in-law died in 1998 whereafter in the year 1999 the application seeking maintenance was filed which was dismissed for non-prosecution leading to filing of the present miscellaneous case. It further appears from records that P.W. 4 who is own Mama of the husband (petitioner) clearly deposed before the court that applicant (wife) was married with petitioner and the wedlock had produced one son Jeetesh (P.W. 5). It further appears from their evidence that Jeetesh Mishra (P.W. 5) performed the last rites of his grandfather in presence of petitioner. It further appears from records that P.W. 4 who is own Mama of the husband (petitioner) clearly deposed before the court that applicant (wife) was married with petitioner and the wedlock had produced one son Jeetesh (P.W. 5). It further appears from their evidence that Jeetesh Mishra (P.W. 5) performed the last rites of his grandfather in presence of petitioner. Learned court below has also found that all the witnesses were cross-examined on behalf of the petitioner (husband) but P.W. 5 was not even cross-examined by the petitioner (husband). Having regard to these facts emanating from records learned trial court has come to a conclusion that applicant-wife was the legally-wedded wife of the petitioner. 6. This Court does not find any patent illegality in arriving at the said conclusion based on materials on record. The documents on which the petitioner is placing reliance have been brought in existence subsequent to the year 1976. They shall, therefore, have no bearing on the issue. 7. Learned counsel for the petitioner has submitted that quantum of maintenance fixed under the order impugned is excessive/disproportionate in view of the finding on his income particularly when the petitioner has to support at least two minor children out of four produced from the wedlock with the aforesaid Shakuntala Devi, it is contended that in law he is bound to support them. 8. Learned counsel for O.P. No. 2 (wife) refers to Annexure-C to the counter affidavit which is the pay slip of the petitioner of November, 2008. It appears therefrom that net pay of the petitioner is Rs. 21,186.40. 9. Considering the aforesaid position, this Court is not prepared to accept the contention of the petitioner that the quantum of maintenance fixed by court below is on the higher side and/or excessive. 10. In view of above discussions, I do not find any merit in this application which is accordingly dismissed.