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2012 DIGILAW 1049 (PAT)

Satya Narayan Choudhary v. State of Bihar

2012-07-31

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel for the petitioner, learned Additional Public Prosecutor appearing on behalf of the State as also learned counsel appearing on behalf of the opposite party no.2. 2. The petitioner, the husband of the opposite party no.2, being aggrieved by the impugned judgment and order dated 14th March 2007 passed in Maintenance Case No. 23 of 2006 by the learned Principal Judge, Family Court, Rohtas at Sasaram allowing the claim of maintenance in favour of the O.P. No. 2 at the rate of Rs. 1750/- per month in exercise of his powers under Section 125 of the Code of Criminal Procedure, 1973 (For short “Cr.P.C.”), has preferred the present revision application questioning the correctness, legality and propriety of the impugned order. 3. Learned counsel appearing on behalf of the petitioner submits that there is no dispute with respect to relationship between the petitioner and opposite party no.2, as they are legally wedded husband and wife respectively and marriage between them was solemnized on 11.06.1995. It is further submitted that though the petitioner is prepared to keep and maintain opposite party no.2 as his legally wedded wife with all dignity, safety and security, yet without considering the scheme and scope of Section 125(4) Cr. P.C. the claim of maintenance of Opposite party no.2 has been allowed. It is contended that the petitioner has no independent source of income and the income assessed by the learned Principal Judge, Family Court, Rohtas at Sasaram is not based on any legal materials available on record. Therefore, in the submissions of the learned counsel, the impugned order of maintenance passed by the learned Principal Judge, Family Court, Rohtas at Sasaram is liable to be set aside. 4. Learned counsel appearing on behalf of the opposite party no.2 has strenuously opposed the prayer made on behalf of the petitioner. It is contended by the learned counsel that in the proceeding under Section 125 Cr. P. C. both sides were given opportunity to produce the materials/ witnesses in support of their respective cases and, in fact, the petitioner had examined as many as 3 witnesses, yet he could not produce any relevant materials for disputing the claim of opposite party no.2. P. C. both sides were given opportunity to produce the materials/ witnesses in support of their respective cases and, in fact, the petitioner had examined as many as 3 witnesses, yet he could not produce any relevant materials for disputing the claim of opposite party no.2. Therefore, the learned Principal Judge, Family Court, Rohtas at Sasaram on the basis of the materials/ evidence produced by the parties has assessed the income of the petitioner and has allowed the claim of maintenance of the O.P. No. 2 at the rate of Rs. 1750/- per month. It is highlighted by the learned counsel appearing on behalf of the opposite party no.2 that the petitioner is having landed property and is having income from that also, besides the income from other sources. Therefore, in his submissions, the impugned order of maintenance does not require any interfere by this Court. Lastly it was urged by the learned counsel appearing on behalf of the opposite party no.2 that she is prepared to live with her husband provided she is kept in the family with all security, safety and in a dignified manner. 5. After having heard learned counsel for the parties and on examination of the materials available on record as also on perusal of the impugned order, this Court finds that the petitioner as also opposite party no.2 have expressed their willingness to live together as wife and husband. Section 9 of the Family Courts Act, 1984 ( In short “the Act”) mandates that in every suit or proceeding the family court shall make an endeavour to assist and persuade the parties for arriving at a settlement in respect of the subject matter of the dispute in the suit or proceeding. It further mandates that if the Family Court finds that there is any reasonable possibility of a settlement of dispute between the parties, the matter should be adjourned enabling the parties to make an attempt to have a settlement of entire dispute. In the present case mandate of Section 9 of the Act has not been complied with. This Court further finds that the learned Principal Judge has not recorded a finding of facts that despite willingness of the petitioner to keep and maintain his wife what was the sufficient cause for opposite party no.2 not to live with him as his wife. This Court further finds that the learned Principal Judge has not recorded a finding of facts that despite willingness of the petitioner to keep and maintain his wife what was the sufficient cause for opposite party no.2 not to live with him as his wife. From the perusal of the impugned order it is also apparent that the learned Principal Judge, Family Court, Rohtas at Sasaram has not correctly assessed the income of the petitioner, yet the quantum of maintenance at the rate of Rs. 1750/- per month has been fixed. The quantum of maintenance has to be fixed on the basis of materials produced by the parties and after ascertaining the income of the husband. Apparently, on this score also matter requires reconsideration. 6. It is admitted case of the parties that by the impugned judgment the petitioner was directed to make payment of maintenance at the rate of Rs. 1750/- per month from the date of application, but the petitioner has paid only Rs. 30,000/- in all. Balance amount of maintenance has not been paid till date for one reason or the other. 7. For the reasons recorded above, this Court is of the considered opinion that the entire matter requires reconsideration and fresh decision by the learned Principal Judge, Family Court, Rohtas at Sasaram. Such decisions are required to be made on the basis of materials/ evidence produced by the parties. 8. In the result, the impugned judgment and order dated 14th March 2007 passed in Maintenance Case No. 23 of 2006 by the learned Principal Judge, Family Court, Rohtas at Sasaram is set aside and the matter is remitted to the the learned Principal Judge, Family Court, Rohtas at Sasaram for reconsideration and fresh decision in accordance with law. 9. Learned counsel for the petitioner and learned counsel for the opposite party No.2 undertake that petitioner and opposite party no. 2 shall appear with a certified copy of the present order before the learned Principal Judge, Family Court, Rohtas at Sasaram on 27th August 2012. On their appearance the learned Principal Judge, Family Court, Rohtas at Sasaram shall fix a firm date for proceeding in the matter afresh. Both the parties shall be granted opportunity to produce their materials/ witnesses in support of their respective cases. On their appearance the learned Principal Judge, Family Court, Rohtas at Sasaram shall fix a firm date for proceeding in the matter afresh. Both the parties shall be granted opportunity to produce their materials/ witnesses in support of their respective cases. The petitioner shall be granted a maximum time of two months for producing all the materials/witnesses in support of his case. The opposite party no.2 shall also be granted a maximum period of two months for producing her materials /witnesses in support of her case. All endeavours shall be made by the learned Principal Judge, Family Court, Rohtas at Sasaram to conclude the proceeding at an early date preferably on or before 31st January 2013. However, before allowing the parties to produce their evidence the learned Principal Judge, Family Court, Rohtas at Sasaram shall be obliged to comply the mandate of Section 9 of the Act and only on failure to have a settlement of the dispute, the matter shall be decided on merit. 10. It is clarified that if the petitioner does not appear on 27th August 2012 with a certified copy of the present order before the learned Principal Judge, Family Court, Rohtas at Sasaram, then it shall be construed that the present criminal revision application filed by him has finally been rejected by this Court, and in that case, the learned Principal Judge, Family Court, Rohtas at Sasaram shall be at liberty to get the impugned judgment implemented and entire arrears of maintenance recovered from the petitioner. 11. Admittedly, the case of maintenance was filed by opposite party no.2 in the year 2006 and till date only an amount of Rs. 30,000/- has been paid by the petitioner to opposite party no.2. In the given facts of the case, this Court fixes Rs. 1000/- per month as interim maintenance payable by the petitioner to opposite party no.2 from the date of the filing of the maintenance case. Arrears of interim maintenance shall be calculated by the learned Principal Judge, Family Court, Rohtas at Sasaram at the rate of Rs. 1000/- per month from the date of the filing of the maintenance case, and on such calculation, amount of Rs. 30,000/-. Arrears of interim maintenance shall be calculated by the learned Principal Judge, Family Court, Rohtas at Sasaram at the rate of Rs. 1000/- per month from the date of the filing of the maintenance case, and on such calculation, amount of Rs. 30,000/-. Which has already been paid to the opposite party no.2 by the petitioner, shall be deducted and balance amount of interim maintenance till 31st August 2012 shall be permitted to be paid by the petitioner in instalments. The first instalment of Rs. 20,000/- shall be paid by the petitioner to the O.P. No. 2 on or before 15th September 2012. Second instalment of Rs. 15,000/- shall be paid by the petitioner to opposite party no.2 on or before 15th October 2012. Balance amount of interim maintenance shall be paid by way of 3rd instalment on or before 9th November 2012. 12. However, in the meantime, the petitioner shall keep on depositing the amount of interim maintenance till final disposal of the case at the rate of Rs. 1000/- per month for every current month commencing from September 2012 and payment shall be made on completion of every month by the end of 1st week of next following month. In case of failure by the petitioner to make payment of interim maintenance, as indicated above, the learned Principal Judge, Family Court, Rohtas at Sasaram shall be at liberty to take all coercive measures for recovery of the same. 13. With the aforesaid observation and directions, the application stands finally disposed of. 14. The interim order dated 08.07.2010 passed by this Court stands vacated. 15. The parties are left to bear their own costs.