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2012 DIGILAW 1420 (PAT)

Indu Devi v. State of Bihar

2012-10-05

BIRENDRA PRASAD VERMA

body2012
ORDER With the consent of the parties, both the matters have been taken up for their final disposal. 2. Cr. Revision No. 300 of 2009 has been filed by Smt. Indu Devi (hereinafter referred to as ‘the wife’) claiming to be wife of opposite party no.2 Laleshwar Jha (hereinafter referred to as ‘the husband’). She has assailed the validity and correctness of order dated 28.11.2008 passed in Maintenance Misc. Case No.25 of 2008 by learned Principal Judge, Family Court, Saharsa, whereby her petition filed under section 127 Cr. P.C. has been allowed and the quantum of maintenance has been enhanced from Rs. 500/- per month to Rs. 1,000/- per month only. She has prayed for further enhancement of the quantum of maintenance in proportionate to the income of her husband Laleshwar Jha. 3. Cr. Misc. No. 11380 of 2012 has been filed by aforesaid Laleshwar Jha, the husband of smt. Indu Devi, opposite party no.2 in Cr. Revision No. 300 of 2009. He has also assailed the validity and correctness of the aforesaid order dated 28.11.2008 passed in aforesaid Misc. Case No. 25 of 2008 by learned Principal Judge, Family Court, Saharsa, primarily on the ground that before passing the aforesaid order for enhancement of the quantum of maintenance, he had not received any notice and the impugned order has been passed ex parte. Therefore, he has prayed that the matter may be remitted back for fresh decision and petitioner Laleshwar Jha may be given one opportunity to produce his evidence/materials in support of his case that the wife is not entitled to have the enhancement of the quantum of maintenance. 4. It is admitted case of the parties that the wife had originally filed a petition under section 125 Cr.P.C. claiming maintenance from the husband on the ground that she is the legally wedded wife of the husband, and marriage between them was solemnized in the year 1964 according to Hindu rituals and from their wedlock two daughters and one son were born. It was also the case of the wife that though husband is having sufficient means, yet he is refusing to maintain her. On the basis of the aforesaid petition filed under section 125 Cr. P.C. on behalf of the wife, Misc. Case No. 122 of 1989 was registered in the court of learned Judicial Magistrate, 1st Class, Saharsa. It was also the case of the wife that though husband is having sufficient means, yet he is refusing to maintain her. On the basis of the aforesaid petition filed under section 125 Cr. P.C. on behalf of the wife, Misc. Case No. 122 of 1989 was registered in the court of learned Judicial Magistrate, 1st Class, Saharsa. Notice was issued to the husband and in response to the notice he entered appearance in that proceeding and filed his show cause resisting the prayer made on behalf of the wife for grant of maintenance. 5. In support of their respective cases, the wife examined as many as five witnesses, whereas the husband examined as many as four witnesses. Learned Judicial Magistrate, on consideration of entire materials/evidence produced by the wife as well as by the husband, came to a finding that applicant i.e. Indu Devi is the legally wedded wife of Laleshwar Jha (husband). The learned Judicial Magistrate has also recorded a finding of fact that the husband is having sufficient means, yet he was not maintaining the wife and minor children. After recording the aforesaid findings, the petition for maintenance filed on behalf of the wife was finally allowed by judgment and order dated 19.4.1991 passed in Misc. Case No. 122 of 1989 by learned Judicial Magistrate, 1st Class, Saharsa and the husband was directed to pay maintenance to the wife for herself and her minor children at the rate of Rs. 500/- per month with effect from 1.8.1989. 6. It is also the common case of the parties that the aforesaid judgment and order dated 19.4.1991 has attained its finality, as it has not been reversed or set aside by any higher court. It further appears that in view of radical change in maintenance law, and amendment brought in section 125Cr.P.C. by Amending Act No. 50 of 2001 coming into force with effect from 24.9.2001, and also in view of change of circumstances, the wife filed a petition on 13.2.2008 under section 127 Cr.P.C. for enhancement of the quantum of maintenance, which gave rise to Misc. Case No. 25 of 2008 in the court of learned Principal Judge, Family Court, Sahara. In the aforesaid Misc. case, the husband was impleaded as opposite party. Case No. 25 of 2008 in the court of learned Principal Judge, Family Court, Sahara. In the aforesaid Misc. case, the husband was impleaded as opposite party. According to the findings recorded by learned Principal Judge, Family Court, Saharsa, despite issuance of notice and service of notice upon the husband opposite party, he did not appear in that matter to contest the claim of enhancement of the quantum of maintenance made on behalf of the wife. Accordingly, the proceeding proceeded ex parte. 7. In support of her claim for enhancement of the quantum of maintenance, the wife produced two witnesses including herself to demonstrate that the husband is a Govt. servant and is working as Nazir at Western Koshi Canal at Khutauna in the District of Madhubani, under the Department of Irrigation, Govt. of Bihar and he is drawing a salary of about Rs. 20,000/- per month. On the basis of materials produced by the wife, the petition filed under Section 127 Cr.P.C. was allowed by the impugned order dated 28.11.2008 and the quantum of maintenance was enhanced from Rs. 500/- per moth to Rs. 1,000/- per month. The wife is still aggrieved and not satisfied with the quantum of maintenance fixed by the learned Principal Judge and has moved this Court in the present revision application for further enhancement of the quantum of maintenance by taking into consideration the income of the husband. 8. As indicated above, the husband has also challenged the impugned order dated 28.11.2008 passed in the aforesaid Misc. CaseNo. 25 of 2008 by filing the aforesaid Cr. Misc. No.11380 of 2012, primarily on the ground that the impugned order has been passed in violation of principles of natural justice, and that now he has retired from service and further he has other liabilities towards his other family members, therefore, the impugned order enhancing the quantum of maintenance requires modification and wife is not entitled to any further enhancement in the quantum of maintenance. 9. A valid grievance has been raised on behalf of the wife that though the amount of maintenance was originally fixed at the rate of Rs. 500/- per month by an order dated 19.4.1991, but the husband has not complied with that order and has not paid the entire arrears of maintenance at the rate of Rs. 9. A valid grievance has been raised on behalf of the wife that though the amount of maintenance was originally fixed at the rate of Rs. 500/- per month by an order dated 19.4.1991, but the husband has not complied with that order and has not paid the entire arrears of maintenance at the rate of Rs. 500/- per month till the date, the aforesaid judgment was modified by the impugned order dated 28.11.2008. A further grievance has been raised on behalf of the wife that though the quantum of maintenance was enhanced by the impugned order at the rate of Rs. 1,000/- per month and though there is no stay order passed by this Court, yet the aforesaid amount of Rs. 1,000/- has not been paid fully by the husband to the wife. 10. Learned counsel appearing on behalf of the husband submits that during pendency of the present application, the husband has paid altogether Rs. 20,000/- towards arrears of maintenance to the wife. He has shown the willingness of the husband to pay the arrears of maintenance within a reasonable time fixed by this Court. 11. After having heard the parties, this Court finds that the impugned order dated 28.11.2008 has been passed ex parte by learned Principal Judge, Family Court, Saharsa. Therefore, the husband could not get an opportunity to place his case before the learned Principal Judge, Family Court, Saharsa, before final adjudication was made on the question of enhancement of the quantum of maintenance. Secondly, this Court further finds that though at the relevant time the husband was in Govt. service, but subsequently he has superannuated from service, therefore, his monthly income by way of pension must have been reduced. But, this aspect could not have been taken into consideration by learned Principal Judge, Family Court, Saharsa while passing the impugned order. 3rdly, this Court finds that the quantum of maintenance enhanced at the rate of Rs. 1,000/- per month is not sufficient for the wife, in view of the present day’s price rise and inflation. But, this aspect could not have been taken into consideration by learned Principal Judge, Family Court, Saharsa while passing the impugned order. 3rdly, this Court finds that the quantum of maintenance enhanced at the rate of Rs. 1,000/- per month is not sufficient for the wife, in view of the present day’s price rise and inflation. Learned Principal Judge, Family Court, Saharsa, while passing the final order for fixing the quantum of maintenance was required to take into consideration the object and mandate of Section 125 (1) Cr.P.C. and was obliged to maintain a balance while fixing the quantum of maintenance by looking into the income of the husband and need of the wife, and only thereafter he was required to fix the quantum of maintenance. But, this has not been done in the present case. 12. For the reasons recorded above, the impugned order dated 28.11.2008 passed in Misc. Case No. 25 of 2008 by learned Principal Judge, Family Court, Saharsa, is hereby set aside and the matter is remitted back for fresh decision in accordance with law in the light of observations and directions made above. 13. Learned counsel appearing on behalf of the wife and the husband undertake that both the husband and the wife shall appear with a certified copy of the present order on 26.11.2012 before learned Principal Judge, family Court, Saharsa. On their appearance on 26.11.2012, a firm date shall be fixed by the learned Principal Judge, Family Court for proceeding in the matter afresh and all endeavours shall be made to conclude the proceeding within a maximum period of six months. But before doing so, the learned Principal Judge shall be obliged to give reasonable opportunity of hearing to both the parties. 14. The husband is hereby directed to pay the entire arrears of maintenance up to the period of November, 2012 as per previous orders, as indicated above, within a period of four months from today. On failure to pay the entire arrears of maintenance by the husband to the wife within the aforesaid period of four months, he shall further be obliged to pay interest at the rate of 18 per cent per annum on the amount of arrears of maintenance till the date of realisation. Till the matter is finally disposed of, the husband shall keep on paying Rs. 1,000/- per month to the wife. 15. Till the matter is finally disposed of, the husband shall keep on paying Rs. 1,000/- per month to the wife. 15. It is further clarified that if either party fails to appear before the learned principal Judge, Family Court, Saharsa on 26.11.2012 as fixed by this Court or fails to produce their evidence/materials in support of their respective cases, despite opportunity given by the learned Principal Judge, Family Court, Saharsa, then also the matter shall proceed further and shall be disposed of in accordance with law on the basis of materials available on record by presuming that the defaulting party has nothing to add in support of his/her case in the aforesaid maintenance case. 16. Both the applications stand finally disposed of with above observations and directions. 17. The parties are left to bear their own costs.