Patna High Court - Orders
Ram Chandra Sah @ Ram Chanra Prasad vs Lilawati Devi on 9 July, 2012
Author: Birendra Prasad Verma
Bench: Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.960 of 2010
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Ram Chandra Sah @ Ram Chanra Prasad S/o Shri Paspat Sah, R/o village-
Parsa Mathia, P.S.- Lauriyam, District- West Champaran, presently at
Narkatiaganj (near Krishi Bazar), P.S.- Shikarpur, District- West
Champaran
.... .... Petitioner/s
Versus
Lilawati Devi, alleged wife of Ram Chandra Sah, R/o village- Parsa Mathia,
P.S.- Lauriyam, District- West Champaran, presently residing at Ilam Ram
Chowk, Gaj No. 1, Bettiah, P.S.- Bettiah Town & District- West
Champaran.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Sharvan Kumar, Sr. Advocate
Mr. Rajiv Nayan Singh, Advocate
For the Opp. Party/s : Mr. Bimlesh Kumar Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD
VERMA
ORAL ORDER
5 09-07-2012Heard learned counsel for the petitioner and learned counsel appearing on behalf of the opposite party.
2. The petitioner, being aggrieved by the part of the order dated 30.4.2010 passed in Case No. 120/M/2008 by the learned Principal Judge, Family Court, Bettiah, directing payment of interim maintenance at the rate of Rs. 3000/- per month to the opposite party, has preferred the present revision application under section 19 (4) of the Family Courts Act, 1984, questioning the correctness, legality and propriety of the impugned order.
3. Learned Senior counsel appearing on behalf of Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 2/10 the petitioner submits that in the aforesaid maintenance case filed by the opposite party, by an order dated 23.11.2009 the case was fixed for ex parte hearing, as the petitioner failed to cross-examine witness, Ganesh Sah, produced by the opposite party. Therefore, the petitioner filed a petition for recall of the aforesaid order dated 23.11.2009 directing ex parte hearing of the case. The prayer made on behalf of the petitioner for recall of the order dated 23.11.2009 has been allowed by impugned order dated 30.4.2010 with a further direction that the petitioner shall pay interim maintenance at the rate of Rs. 3000/- per month, to the opposite party. Hence, the present application has been filed.
4. It is contended by the learned Senior counsel that unless and until a petition was filed on behalf of the opposite party for interim maintenance, learned Principal Judge, Family Court, Bettiah could not have passed such an order issuing direction for payment of interim maintenance to the opposite party. It is submitted by the learned Senior counsel appearing on behalf of the petitioner that second and third proviso of section 125 (1) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) are required to be read along with sub- section-2 of section 125 Cr.P.C. for the purpose of passing an Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 3/10 order for grant of interim maintenance. According to him, an order of interim maintenance can be passed in favour of claimant only on the basis of a petition filed for such purpose, and if such a petition is filed, then under the mandate of third proviso of section 125 (1) Cr.P.C., it is required to be disposed of expeditiously, preferably within a period of sixty days from the date of the service of notice of the application. It is also urged that, admittedly, in the proceeding before the court below no petition was ever filed by the opposite party for grant of interim maintenance, and as such that part of the order dated 30.4.2010 directing payment of interim maintenance by the petitioner to the opposite party becomes illegal and arbitrary, and, therefore fit to be set aside by this Court. It is next contended that the petitioner has raised a dispute of his relationship with the opposite party, and if the opposite party is not the legally wedded wife of the petitioner, then in that case, she cannot get even maintenance under section 125 Cr. P.C.
5. Learned counsel appearing on behalf of the opposite party has resisted the prayer made on behalf of the petitioner. It is submitted that the case was filed in the year, 2008 and because of the delaying tactics of the petitioner, the proceeding has not been decided till date. In that view of the Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 4/10 matter, it is contended, the learned Principal Judge, Family Court, Bettiah has passed the impugned order directing for payment of interim maintenance at the rate of Rs. 3000/- per month in favour of the opposite party till the disposal of the maintenance case. According to the learned counsel, the order awarding interim maintenance in favour of the opposite party, in the facts and circumstances of the case, is fully justified. An alternative prayer is also being made on behalf of the opposite party that instead of deciding the issue of interim maintenance, the learned Principal Judge, Family Court, Bettiah may be directed to decide the main case itself filed on behalf of the opposite party in terms of section 125 Cr.P.C. within a reasonable time fixed by this Court
6. After having heard the parties, and on perusal of the materials available on record, it appears that the order directing payment of interim maintenance has been passed without there being any petition filed by the opposite party. In order to appreciate the issue raised in the present proceeding regarding grant of interim maintenance, it would be relevant to examine sub-sections (1) and (2) of section 125 Cr.P.C., which are reproduced herein below.
"125. Order for maintenance of wives, children Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 5/10 and parents:- (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c ) his legitimate or illegitimate child ( not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 6/10 proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation:- For the purposes of this Chapter,-
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.............."
7. It is to be noted here that the provisions for grant of interim maintenance was introduced by the Amending Act 50 of 2001 with effect from 24.9.2001. The second proviso of section 125 (1) Cr.P.C. is required to be read along with third proviso of section 125(1) Cr.P.C and sub section 2 of section 125 Cr.P.C. On conjoint reading of the aforesaid provisions, it Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 7/10 is apparent that for the purpose of grant of interim maintenance a petition must be filed by a claimant. The claimant may be wife or minor child or father or mother, as the case may be. This amendment has been brought by the legislature in order to grant interim protection to the claimant for interregnum period, where person, against whom claim of maintenance has been made, is deliberately delaying the disposal of the case of maintenance. The third proviso of section 125 (1) Cr.P.C. further provides that the petition for grant of interim maintenance should be tried to be disposed of expeditiously and preferably within a period of sixty days from the date of service of notice of such application upon other side. Section 125 Cr.P.C. does not grant suo motu power to the court for grant of interim maintenance.
8. In the aforesaid factual and legal background, the impugned order dated 30.4.2010 directing for payment of interim maintenance to the opposite party by the petitioner cannot be sustained in the eye of law and offending part of the order dated 30.4.2010 is, therefore, fit to be set aside. For the reasons recorded above, the part of the impugned order dated 30.4.2010 passed by the learned Principal Judge, Family Court, Bettiah directing payment of interim maintenance at the rate of Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 8/10 Rs. 3000/- per month is hereby set aside.
9. However, this does not conclude the matter.
Admittedly, the opposite party had filed her maintenance case in the year, 2008. Despite appearance in the aforesaid case, the petitioner has been deliberately delaying the disposal of the maintenance case filed by the opposite party. He had also chosen not to cross-examine the witness produced by the opposite party, and subsequently filed a petition for recall of the order directing ex parte hearing of the maintenance case. In the facts and circumstances of the case, this Court is of the considered opinion that the maintenance case filed on behalf of the opposite party is required to be disposed of at an early date. The petitioner is hereby directed to appear before the learned Principal Judge, Family Court, Bettiah on or before 30th July, 2012 with a certified copy of the present order. The opposite party shall be obliged to produce all her remaining witnesses/materials on or before 30th August, 2012, if she is, at all, interested in producing more witnesses in support of her case. The petitioner, if so wishes, may cross-examine the witnesses, but he will not be granted unnecessary adjournments for cross-examining the witnesses produced by the opposite party. The petitioner shall be granted time till 1 st October, 2012 Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 9/10 for producing his witnesses/materials in support of his case. The opposite party shall also be granted opportunity to cross- examine the witnesses produced by the petitioner. If the petitioner fails to examine the witnesses within the time fixed, the learned Principal Judge, Family Court, Bettiah shall be at liberty to close his evidence. The learned Principal Judge, Family Court, Bettiah, thereafter, shall make endeavor to decide the maintenance case filed by the opposite party at an early date, preferably within a period of one month, after closure of the evidence of the petitioner.
10. It is clarified that in the meantime, if the petitioner has deposited any amount in compliance of the impugned order dated 30.4.2010 towards interim maintenance, then the same shall not be returned to him. The amount deposited by the petitioner shall remain intact with the court and shall be subject to adjustment against the final order passed by the learned Principal Judge, Family Court, Bettiah, if claim for maintenance of the opposite party is allowed. It is also clarified that if the opposite party so desires, she shall be at liberty to file a petition under the provision of second proviso of section 125 (1) Cr.P.C. for grant of interim maintenance. If such a petition is filed by the opposite party, the same shall be Patna High Court CR. REV. No.960 of 2010 (5) dt.09-07-2012 10/10 disposed of expeditiously as per the mandate of the law, indicated above.
11. With the above observations and directions the present application stands disposed of.
12. The parties are left to bear their own costs.
RPS/- (Birendra Prasad Verma, J) A.F.R