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2012 DIGILAW 1357 (PAT)

Rajesh Kumar v. State of Bihar

2012-09-24

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor appearing on behalf of the State of Bihar as also learned counsel appearing on behalf of the opposite party no.2. 2. The grievance of the petitioner in the present application is that he is not being permitted to produce his witnesses by engaging a lawyer for placing his case in its proper perspective before the learned Principal Judge, Family Court, Muzaffarpur, in Maintenance Case No. 5 of 2002. 3. It is contended that some witnesses were examined on behalf of the parties in the aforesaid maintenance case filed by the opposite party no.2, but the petitioner was not permitted to engage a lawyer for their examination/cross examination. It is prayed that the petitioner may be given one more opportunity to produce all his witnesses in support of his case and he may also be permitted to engage a lawyer of his choice for conducting the case on his behalf. 4. Learned Additional Public Prosecutor and learned counsel appearing on behalf of the opposite party no.2 have strongly opposed the prayer. It is contended by them that Maintenance Case No. 5 of 2002 was filed by the opposite party no.2 as far back as in the year 2002 under Section 125 Cr.P.C. claiming maintenance against the petitioner, but for one reason or the other, the petitioner has successfully delayed the proceeding and till date the proceeding is pending before the learned Principal Judge, Family Court, Muzaffarpur and final order could not be passed. According to leaned counsel appearing on behalf of the opposite party no.2, even by the impugned order dated 15.11.2008 passed in the aforesaid Maintenance Case No. 5 of 2002, the petitioner was granted permission to engage a lawyer for examination and cross examination of the witnesses produced by the parties, yet the petitioner did not produce further witnesses and on frivolous ground has filed the present revision application before this Court. It is also submitted on behalf of the opposite party no.2 that the aforesaid Maintenance Case No. 5 of 2002 may be directed to be finally disposed of on the basis of materials available on the record. 5. After having heard the parties, this Court finds that the opposite party no.2 filed the aforesaid Maintenance Case No. 5 of 2002 in the year 2002, claiming maintenance in terms of Section 125 Cr. 5. After having heard the parties, this Court finds that the opposite party no.2 filed the aforesaid Maintenance Case No. 5 of 2002 in the year 2002, claiming maintenance in terms of Section 125 Cr. P.C. on the ground that she is the legally wedded wife of the petitioner, yet he is neglecting to maintain her, though he is the govt. servant and is having sufficient means. However, despite her best efforts, till date neither any amount of interim maintenance has been paid to her nor the final order has been passed, and the matter is pending for almost ten years without any relief being granted to the opposite party no.2. 6. Under the mandate of Section 13 of the Family Courts Act, 1984 (for short ‘Act’), no party to a suit or proceeding before a family Court, as a matter of right, can claim to be represented by a lawyer. However, in exceptional circumstances, a party can be permitted to engage a lawyer/advocate to appear on its behalf in a suit or proceeding pending before the Family Court. Taking into consideration the entire circumstances, this Court is of the opinion that the petitioner should be permitted to engage a lawyer of his choice to appear on his behalf in the aforesaid maintenance case and he should be given one more opportunity to produce his witnesses, so that the aforesaid Maintenance Case No. 5 of 2002 is finally disposed of at an early date on its own merit. However, while permitting the parties to engage lawyers of their choice, the evidence of witnesses shall be recorded in accordance with the mandate of Sections 14, 15 and 16 of the Act. 7. The petitioner and the opposite party no.2 are hereby directed to appear before the learned Principal Judge, Family Court, Muzaffarpur, on 3.10.2012. The petitioner is further directed to pay an amount of Rs. 5,000/- as costs of litigation to the opposite party no.2. On their appearance on that date, learned Principal Judge, Family Court, Muzaffarpur shall permit the petitioner to examine all his witnesses on or before 30.11.2012. He shall also be permitted to engage a lawyer of his own choice, who shall be permitted to participate in the proceeding either for the purposes of examination or for cross examination of the witnesses. On their appearance on that date, learned Principal Judge, Family Court, Muzaffarpur shall permit the petitioner to examine all his witnesses on or before 30.11.2012. He shall also be permitted to engage a lawyer of his own choice, who shall be permitted to participate in the proceeding either for the purposes of examination or for cross examination of the witnesses. The opposite party no.2 shall also be permitted to produce further witnesses in support of her case, if so advised, on or before 31st December, 2012. The learned Principal Judge, Family Court, Muzaffarpur shall make all endeavours to dispose of the maintenance case on or before 31.1.2013. 8. It is clarified that if the petitioner fails to appear before the learned Principal Judge, Family Court, Muzaffarpur, with a certified copy of the present order on 3.10.2012 and fails to pay an amount of Rs. 5,000/- to the opposite party no.2 by way of litigation costs on that date, as directed above, then it shall be construed that the present criminal revision application filed on behalf of the petitioner has finally been rejected by this Court and in that case, the learned Principal Judge, Family Court, Muzaffarpur shall be at liberty to decide the maintenance case filed on behalf of the opposite party no. 2 on the basis of the materials already available on the record. 9. It is further clarified that if either party fails to produce his/her witness, despite opportunity given, and/or in any manner tries to delay the disposal of the maintenance case, then learned Principal Judge, Family Court, Muzaffarpur shall be at liberty to proceed in the matter further in accordance with law for deciding the maintenance case filed by the opposite party no.2 on the basis of materials already available on the record and shall make all endeavours to conclude the proceeding within the time prescribed above by this order. 10. The interim order of stay dated 20.9.2011 passed by a Bench of this Court, stands vacated. 11. With the aforesaid observations and directions, the application sands finally disposed of.