Patna High Court - Orders
Md. Seraj Ahmad vs State Of Bihar & Anr on 16 May, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.909 of 2012
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Md. Seraj Ahmad son of Md. Gulzar, resident of Mohalla-Damaria
Anisabad, P.S. Gardanibagh, District Patna at present C/o- Md.Shoaib (fathr
in law), Mohalla Damaria, P.O. Anisabad, P.S. Gardanibagh, District Patna
.... .... Petitioner/s
Versus
1. State of Bihar
2. Gayatri Shekhar @ Anupam Shekhar daughter of Chandra Shekhar
Singh, resident of village Darihat, P.S. Darihat, District Rohtas at
present residing at Mohalla Patel Nagar, P.S. Shastri Nagar, Road
No. 4/5, Tara Chand Apartment, District Patna now in Mohalla
Keshav Nagar Kathitar, P.S +P.O. Ratu, District Ranchi(Jharkhand)
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jitendra Narayan, Adv.
For the Respondent/s : Mr. Sunil Srivastava, Adv.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
3 16-05-2014Heard Mr. Jitendra Narayan, learned counsel for the petitioner, learned counsel for the State and Mr. Sunil Srivastava, learned counsel appearing for the opposite party No.2.
This criminal revision is directed against the judgment and order dated 16.6.2012 passed by the Additional Sessions Judge, 9th, Patna whereby the appellate Court while dismissing the Cr. Appeal No. 38 of 2011 which was heard along with Cr. Appeal No. 45 of 2011 filed by the father of this petitioner, has affirmed the judgment and order dated 29.1.2011 passed by the Civil Judge(Junior Division)/ Judicial Magistrate, 1st Class, Patna in Domestic Violence Case No. 29 of 2008, Trial No. 389 of 2010 whereby the learned Magistrate had allowed a lump-sum 2 Patna High Court CR. REV. No.909 of 2012 (3) dt.16-05-2014 2/5 maintenance of Rs. 20 lacs payable by the petitioner to the opposite party no.2 under Section 20 of the Protection of Women from Domestic Violence Act, 2005(hereinafter referred to as the 'Act') and the Rules framed thereunder.
The parties to the contest are married.
The opposite party No.2 charging the petitioner with Domestic Violence within the meaning of the Act sought for compensation and which has been allowed by the trial Court and affirmed by the appellate Court and which has been questioned in the present application on grounds of having been determined without any foundational basis.
A perusal of the impugned order passed by the learned Magistrate dated 29.1.2011 manifests that a petition was filed on behalf of the opposite party No.2 on 19.6.2010 in the pending Domestic Violence Case No. 29 of 2008 praying for payment of lump-sum compensation under Section 20 of the Act and which has been allowed by the impugned order.
Whereas it was the contention of the opposite party No.2 that upon an oral understanding that the petitioner would be paying her a sum of Rs. 15,00,000/-, that she became a party to the agreement for consensual separation, a copy whereof is placed at Annexure 8 to the present application but the petitioner retracted 3 Patna High Court CR. REV. No.909 of 2012 (3) dt.16-05-2014 3/5 from his promise of payment of the amount and which forced her to file the present case.
The stand of the opposite party no.2 was contested by the petitioner who denied any such agreement to pay. It was the contention of the petitioner before the Court below that the parties have separated by mutual consent and thus the opposite party No.2 was not entitled to any maintenance under the Act. The petitioner relied upon the judgment and decree passed by the Principal Judge, Family Court, Patna dated 30.7.2009 placed at Annexure- 10 of the application in support of his contention and to submit that the petitioner was not entitled to any relief.
Considering the circumstances, the pleading of the parties and the evidence on record, the Judicial Magistrate upheld the claim of the opposite party No.2 and vide judgment and order passed on 29.1.2011 while allowing the claim the learned Magistrate quantified the compensation at Rs. 20 lacs. The judgment and order of the Court below was questioned by the petitioner by filing Cr. Appeal No. 38 of 2011 and which was dismissed vide judgment and order dated 16.6.2012 and hence this revision.
Mr. Jitendra Narayan, has appeared for the petitioner while the opposite party No.2 has been represented by Mr. Sunil 4 Patna High Court CR. REV. No.909 of 2012 (3) dt.16-05-2014 4/5 Srivastava who have been heard in the matter.
Considering the concurrent findings of the Court below this Court is not persuaded to enter into the merits of the case. The judgment and decree passed by the Principal Judge, Family Court, Patna dated 30.7.2009 placed at Annexure-10 merely disposes of the application on the basis of compromise but does not confirm a separation. The prayer made in the joint petition required the Court below to either pass a decree by accepting the petition or to dispose of the matrimonial case but no such decree was passed rather the maintenance case itself was disposed of in the light of the petition which apparently does not either confirm the divorce or the separation.
That being the position, it is to be seen as to what was the material before the Magistrate to quantify the monetary relief in terms of Section 20 of the Act at Rs. 20 lacs.
Perusal of the order passed by the Magistrate manifests that except for the assertion made by the opposite party No.2 regarding the undertaking of the petitioner to pay a sum of Rs. 15 lacs, there is nothing on record. Although the Act in its provision underlying Section 20 does confer jurisdiction on the Court to either grant lump-sum monetary relief or a monthly payment towards maintenance but the order of the Magistrate reflects that merely on 5 Patna High Court CR. REV. No.909 of 2012 (3) dt.16-05-2014 5/5 consideration of the status of the petitioner and the assertions of the opposite party No.2, that such opinion has been formed which lacks foundational basis for such quantification. Even the appellate Court has ignored this aspect.
In the circumstances set forth hereinabove this Court even while accepting the concurrent finding of the Court below as regarding the right of the opposite party no.2 to monetary relief under Section 20 of the Act is not persuaded by the manner of determination of the compensation at Rs. 20 lacs.
This Court thus taking into consideration the status of the petitioner as also the right of the opposite party no.2 under Act, to claim monetary relief would modify the relief granted by the learned Magistrate as affirmed by the appellate Court requiring the petitioner to make payment to the opposite party No.2 a maintenance of Rs. 5000/- per month payable from the date of filing of the application i.e. 19.6.2010.
With the modification in the impugned orders as aforementioned this application is disposed of.
(Jyoti Saran, J) Bibhash/-