Patna High Court - Orders
Md. Safiullah @ Bijubia vs The State Of Bihar & Anr. on 9 September, 2013
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.1209 of 2011
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1. Md. Safiullah @ Bijubia S/O Fida Hussain R/O Village-Ghorikuta, P.S.-
Jhajha, Distt.-Jamui
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Sabiga Khatoon W/O Safiullah @ Bigubia,, D/O Md. Qamruddin
Present Residing At Village-Bijaya, P.S.-Sone, Distt.-Jamui
.... .... Respondent/s
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Appearance :
For the Petitioner : Mr. Syed Firoz Raza, Adv
For the O.P. No.2 : Mr. Md. Najmul Hoda, Adv
For the State : Mr. Harendra Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
4 09-09-2013Heard learned counsel for the petitioner, learned counsel for O.P. No.2 as well as learned Additional P.P. for the State.
2. Petitioner is husband who is aggrieved by the order dated 27.08.2011 passed by Principal Judge, Family Court, Jamui in Maintenance Case No. 75/2008 whereby and whereunder he has been directed to pay Rs. 1200/- per month in lieu of maintenance which was made to be operative from the date of filing of the petition.
3. Learned counsel for the petitioner assailed the order impugned on the ground (a) learned lower court had not entered into reconciliation in terms of Section-9 of the Family Patna High Court CR. REV. No.1209 of 2011 (4) dt.09-09-2013 2 Court Act, (b) in the petition, apart from landed property, petitioner has been shown as a truck driver while during course of evidence, he has been shown as driver employed under a BDO, (c) petitioner is a Biri worker and earns Rs.30/- only per day, (d) he is ready to keep her wife but it is the wife who is evading her presence and for that purpose, a petition for restitution of conjugal rights is pending, (e) the order has been made operative from the date of filing a petition without having any cogent reason.
4. Learned counsel for O.P. No.2 while refuting the submission submitted that (a) as the wife was subjected to cruelty and harassment at the hands of her husband including other family members and for which Jhajha P.S. Case No. 103 of 2009 was lodged under Section 498A along with other allied Sections and so all the steps taken by petitioner is by way of defusing the effect of above referred case, (b) it is an obligation on the part of the petitioner/husband to maintain his wife. The only criteria is, he should be capable to earn. The petitioner has not claimed that he is physically infirm. Therefore, in the present economic imbalanced situation the amount of Rs.1200/- per month is meager one. The documents relating to Ext-C, C/1 to support the plea that the wife and husband are Biri Workers, are forged and fabricated because of the fact that wife is Sabiga Khatoon while Ext-C/1 relates to Patna High Court CR. REV. No.1209 of 2011 (4) dt.09-09-2013 3 Sakina Khatoon. The husband name is Md. Safiullah @ Bijubia while husband name of Sakina is Md. Safula. Apart from this, the photo affixed thereupon does not belong to Sabiga. In likewise manner, Ext-C is the identity card in the name of Md. Safula son of Md. Fida Ansari while the husband is Md. Safiullah @ Bijubia son of Md. Fida Hussain. So far photo affixed thereupon is concerned, again during course of examination the husband had not explained the same. Therefore, the point so raised on behalf of petitioner is not at all appreciable.
5. Learned APP endorsed the view.
6. Gone through the evidence available on the record. The wife had herself examined as PW-1. In chief, she had narrated the event as well as she had also under para-2 of her examination- in-chief disclosed with regard to means that her husband is driver under a BDO Saheb and earns Rs. 5000/- per month. Her husband also possesses 10 Bighas of land and so she claimed Rs. 3000/- per month. During cross-examination at para-15, she had disclosed that her husband drives vehicle in Patna belonging to a BDO Saheb (Maqsood Alam). Neither she nor did her father say anything to BDO. In para-16, she had divulged that she had gone to the field but unable to say the name of Bahiar.
7. On the other hand, the husband himself examined Patna High Court CR. REV. No.1209 of 2011 (4) dt.09-09-2013 4 as OPW No.10 wherein he had admitted the status of Sabiga Khatoon to her wife. He had further admitted that he earns Rs. 80- 90/- per day by way of making Biri while his wife earns Rs. 60-70 per day. Accordingly, he had exhibited Ext-C and C/1, the identity card issued by the Government of India, Labour Department. He had denied to be a driver. He had further stated that he including six other brothers possess 10 to 12 Katthas of land. He had further disclosed that Naiharwala is fully competent to maintain her. He had further stated that he is ready to keep his wife but is unable to provide maintenance. During cross-examination in para-12 he had admitted that the identity card of his wife Sabiga Khatoon @ Sakina Khatoon is in her possession. He had further admitted that the identity card which has been produced by him relates to different person having no concerned with his wife. He has further admitted presence of a case instituted by his wife. It is apparent that no further cross-examination has been made on behalf of wife on the factum of means.
8. Because of the fact that husband himself failed to substantiate his plea with regard to means which was within his knowledge, and further, whatever explanation has been given is not at all found to be reliable, hence quantum of amount fixed by the learned lower court is found to be just and proper. However, Patna High Court CR. REV. No.1209 of 2011 (4) dt.09-09-2013 5 from the judgment of the learned lower court, it is apparent that no special reason has been assigned with regard to having the order operative from the date of filing of the application. In terms of Section 125(2) Cr.P.C. the order has to be made effective from the date of passing of the order as well as from the date on which petition has been filed. In the aforesaid event, directing the maintenance from date of order appears to be normal course while directing the same from date of filing of petition happens to be exceptional one because of the fact that it depends upon so many factors, one of, there should not be laches on the part of petitioner to linger the proceeding etc. Therefore, the Court should be constrained to direct the order to be operative from date of filing of petition. If so, it should be based upon sound reasoning.
9. After going through the operative portion of the order passed by learned lower court, it is evident that no reason has been assigned for that purpose. Accordingly, the order impugned needs modification on this score and is made operative from the date of order dated 27.09.2011.
10. With the aforesaid modification, the instant revision petition is rejected.
(Aditya Kumar Trivedi, J) perwez