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2013 DIGILAW 897 (PAT)

Md. Nizamuddin v. State of Bihar

2013-07-29

ANJANA PRAKASH

body2013
ORAL JUDGMENT Anjana Prakash, J: The Petitioner seeks quashing of the orders dated 14.07.2006 passed in Cr. Misc. Case No. 5 of 2003 by which the Principal Judge, Family Court, Patna has reviewed the order dated 28.08.1989 passed by the Judicial Magistrate, Patna as also reviewed the order dated 16.09.1993 passed by the Sessions Judge, Patna by which he has directed to pay Rs. 1000/- as maintenance to the Opposite Party No. 2 and her child every month. 2. The background facts of the case is that the Opposite Party No. 2 filed an application under Section 125 Cr.P.C. in the year 1988 numbered as Matrimonial Case No. 109M of 1998 for maintenance of herself and daughter, Jullie who was about six years at the time of filing her application. The Petitioner appeared before the Magistrate and filed his show-cause as well as written statement in which he stated that he had divorced his wife after which she had entered into a second marriage. Taking all this into consideration the Magistrate passed an order dated 28.09.1989 by which he directed the Petitioner to pay a sum of Rs. 450/- and Den Mehar of a sum of Rs. 10,000/- under Section 3 of the Muslim Women Protection of Right and Divorce Act and Rs. 150/- per month to the daughter, Jullie. He was further of the opinion that on perusal of the evidence on the record it could safely be said that the Petitioner had divorced the Opposite Party No. 2 which was effective at least from the date when he had filed his show-cause. 3. The Petitioner thereafter filed a Revision Application before the District and Sessions Judge, Patna against the said order numbered as Cr. Rev. No. 699/1989 wherein a joint compromise petition was filed on 16.06.1999. An ex parte order passed on 28.08.1999 on the basis of compromise and the order of the Magistrate was upheld. Subsequently, the Opposite Party No. 2 filed Cr. Misc. Case No. 09/1997 before the Principal Judge, Family Court, Patna for enhancement of maintenance amount of Rs. 150/- to Rs. 500/- per month to daughter, Jullie. The said application was allowed on 22.04.1998 by the Principal Judge, Family Court, Patna by which he has directed the Petitioner to pay a sum of Rs. 300/- per month to the daughter Jullie. 4. 150/- to Rs. 500/- per month to daughter, Jullie. The said application was allowed on 22.04.1998 by the Principal Judge, Family Court, Patna by which he has directed the Petitioner to pay a sum of Rs. 300/- per month to the daughter Jullie. 4. Subsequently, an application was filed by Opposite Party No. 2 numbered as Cr. Misc. No. 05/2003 before the Principal Judge, Family Court, Patna arising out of Maintenance Case No. 109C of 1988 submitting therein that even after the order was passed the Petitioner was establishing sexual relationship with her as a result of which another daughter was born and she may also be maintained by the Petitioner. It is upon this application that the impugned order was passed. 5. It has been submitted that at the first instance the wife accepted factum of divorce between the spouses and, therefore, the submission of the Opposite Party No. 2 that they maintained sexual relations is evidently a figment of her imagination and not legally permissible. Once the divorce was accepted she was no longer his wife and hence the impugned order by which a sum of Rs. 1,000/- is to be paid to her is illegal. The further submission is that on the oral statement of the Opposite Party No. 2 that the second daughter is his is also not trustworthy since even after her alleged birth the Opposite Party No. 2 had filed Cr. Misc. No. 09/1997 for enhancement of maintenance for Jullie but she did not raise such a point then and much later after about five years she claimed maintenance for the second daughter and herself. 6. On the other hand, Counsel for the Opposite Party No. 2 submits that since the impugned order was passed on an application under Sections 125, 127 and 128 and not a fresh proceeding, hence the factum of marriage could still be agitated therefore the order was fully justified. Moreover, he submits that a divorcee wife is entitled to maintenance for which argument he relies upon a decision reported in 2010(2) BBCJ SC 51. 7. I would like to deal firstly the point raised by the Opposite Party No. 2 that even a divorced wife can claim maintenance is not sustainable in the present case since the Opposite Party No. 2 after the first order did not agitate that she was divorced. 8. 7. I would like to deal firstly the point raised by the Opposite Party No. 2 that even a divorced wife can claim maintenance is not sustainable in the present case since the Opposite Party No. 2 after the first order did not agitate that she was divorced. 8. The subsequent order only on such assumption that she was still the married wife of the Petitioner without taking into consideration the earlier order of the Court is evidently bad. Moreover even though the second daughter from the Petitioner was allegedly born on 10.07.1995 but the Opposite Party No. 2 did not claim maintenance for her in the Petition filed in 1997 for enhancement of maintenance to her daughter Jullie. She did so only in 2003 which raises a reasonable doubt abut her claim. 9. Considering the aforesaid circumstances, the application is allowed and the orders dated 14.07.2006 passed in Cr. Misc. Case No. 5 of 2003 by which the Principal Judge, Family Court, Patna has modified the order dated 28.08.1989 passed by the Judicial Magistrate, Patna is, hereby, quashed. 10. The application stands allowed. 11. However, this order shall not preclude the Opposite Party No. 2 from filing an application u/s 127 Cr.P.C. for her daughter Jullie.