Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1024 (PAT)

Dinesh Sharma v. Rupa Rani Sharma

2012-07-25

BIRENDRA PRASAD VERMA

body2012
ORAL ORDER Heard. 2. The petitioner, husband of the opposite party, being aggrieved by the impugned judgment and order dated 17.04.2010 passed in Maintenance Case No.19M of 2003 by the learned Principal Judge, Family Court, Munger, allowing the claim of maintenance in favour of the opposite party as also for minor son, born out of the wedlock of the petitioner and the opposite party, has preferred the present revision application under Section 19(4) of the Family Courts Act, 1984, questioning the correctness, legality and propriety of the impugned order. 3. Learned counsel for the petitioner submits that there is no dispute with respect to relationship between the petitioner and the opposite party and both of them are legally wedded husband and wife respectively. According to the learned counsel a son was born out of their wedlock and he is living with the opposite party, but that is also not in dispute. The only dispute raised on behalf of the petitioner is that the opposite party is employed and is working as Panchayat teacher drawing a fixed salary of Rs. 6000/- per month and is able to maintain herself, yet her claim for maintenance has been allowed by the impugned judgment. It is contended by the learned counsel for the petitioner that though this issue was raised by the petitioner before the learned Principal Judge, Family Court, Munger, but without considering this aspect of the matter, the claim of maintenance has been arbitrarily allowed by the learned Principal Judge, Family Court, Munger. According to the learned counsel, in view of the aforesaid factual position, the impugned order is not sustainable and is fit to be set aside by this Court. 4. The opposite party has suo motu entered appearance through her counsel and has filed a counter affidavit, wherein she has tried to support the impugned order of the learned Principal Judge, Family Court, Munger, allowing the claim of maintenance in her favour and in favour of the minor child. However, in the whole counter affidavit it has not been disputed that opposite party is now employed on the post of Panchayat teacher and she is drawing a salary of Rs. 6000/- per month. Learned counsel appearing on behalf of the opposite party has submitted that substantial justice has been done by the learned Principal Judge, Family Court, Munger, therefore, the order impugned may not be interfered with. 5. 6000/- per month. Learned counsel appearing on behalf of the opposite party has submitted that substantial justice has been done by the learned Principal Judge, Family Court, Munger, therefore, the order impugned may not be interfered with. 5. After having heard learned counsel for the parties and from perusal of the impugned judgment, it becomes admitted position that the opposite party is now employed as Panchayat teacher and she is drawing a fixed salary of Rs. 6000/- per month. Section 125 of the Code of Criminal Procedure, 1973 (For short “Cr. P. C. “) provides for maintenance for wives, children and parents. The claim of maintenance can be made under Section 125 Cr. P. C. against a husband by his wife, and/or, against the father by the minor child, if that husband or father is having sufficient means and is neglecting or refusing to maintain his wife and the minor child, but there is a rider. Section 125 (1) (a) and (b) of Cr. P. C. mandates that such claim can be made only by such wife or minor child, who is unable to maintain herself/himself, as the case may be. The legislative intent is very loud and clear that the dependent wife and minor child must be provided maintenance for leading a dignified life within the means available to the husband or the father, as the case may be. But, if the claimant is in position to maintain herself/ himself irrespective of the financial condition of the husband or the father, the claim of maintenance shall not be entertained. 6. In the present case, admitted position is that opposite party is employed as a Panchayat teacher and she is drawing a fixed salary. Though there is no pleading that the minor child is in a position to maintain himself, but admittedly he was not a party in the aforesaid miscellaneous case filed by the opposite party before the learned Principal Judge, Family Court, Munger, yet the learned Principal Judge, Family Court, Munger has been pleased to allow the claim of maintenance in favour of the minor child also. The plea of employment of opposite party was raised by the petitioner, but that has not been fully considered and further the scheme and scope of Section 125 (1) (a) Cr. P.C. has not been taken into consideration before passing the impugned order. The plea of employment of opposite party was raised by the petitioner, but that has not been fully considered and further the scheme and scope of Section 125 (1) (a) Cr. P.C. has not been taken into consideration before passing the impugned order. Therefore, entire matter requires reconsideration by the learned Principal Judge, Family Court, Munger. 7. For the reasons recorded above, the impugned order dated 17.04.2010 passed in Miscellaneous Case No. 19M of 2003 by the learned Principal Judge, Family Court, Munger is hereby set aside and the matter is remitted to the learned Principal Judge, Family Court, Munger for rehearing and re-deciding the entire matter, after giving opportunity of hearing and producing evidence/ materials to all concerned including the minor child, if he so desires. Learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the opposite party undertake that the petitioner and opposite party shall appear before the learned Principal Judge, Family Court, Munger on 8th August 2012 with the certified copy of the present order. Whereafter, the learned Principal Judge, Family Court, Munger shall fix a firm date for proceeding in the matter afresh. Opposite party shall be given a period of one month for producing her all witnesses/materials in support of her claim of maintenance. The petitioner shall also be given a time of one month for producing evidence/ materials in support of his claim. If any application is filed on behalf of the minor child for impleading him as party, then that may also be taken into consideration and his claim may also be decided by the learned Principal Judge, Family Court, Munger in accordance with law and on the basis of the material produced by the parties. 8. The learned Principal Judge, Family Court, Munger shall make all endeavours to conclude the proceeding at an early date preferably on or before 31st December 2012. If either party fails to produce evidence/materials in support of his or her case despite opportunity given, then the learned Principal Judge, Family Court, Munger would be at liberty to pass fresh order in accordance with law on the basis of the materials available on record. 9. If either party fails to produce evidence/materials in support of his or her case despite opportunity given, then the learned Principal Judge, Family Court, Munger would be at liberty to pass fresh order in accordance with law on the basis of the materials available on record. 9. If the petitioner fails to appear on the date fixed with the certified copy of the present order, then it shall be construed that the present application filed on his behalf has finally been rejected by this Court and in that case the learned Principal Judge, Family Court, Munger shall get the impugned order implemented and the amount of maintenance recovered from him. 10. If the matter is not finally decided afresh by the end of 31st December 2012, then the opposite party shall be at liberty to file a petition for interim maintenance, which shall be considered and decided in accordance with law. 11. With the aforesaid observations and directions, the application stands finally disposed of. 12. The parties are left to bear their own costs.