Patna High Court - Orders
Grijesh Kumar Tripathi vs Ansu Devi on 25 July, 2013
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.209 of 2011
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Grijesh Kumar Tripathi son of late Shiv Shankar Tripathi R/O Ahiroly P.O.
Arjun Dumeri, P.S. Hata, Distt- Khushi Nagar (UP) at present Raptinagar
Do-Page-3 W.E.S. Konorualy Madan No. 268/3 Prof. Girijesh Kumar
Tripathi Ka Makan, P.S. Sahpur, Distt-Gorakhpur. As present Assistant
Teacher, North Bihar Sugar Mills High School Narainpur, P.S. Bagaha,
Distt-West Champaran (Bihar)
.... .... Petitioner/s
Versus
Ansu Devi, D/O Veer Bahadur Prasad, R/O Ahiroly P.O. Arjun Dumeri,
P.S. Hata, Distt- Khushi Nagar (UP) at present village-Bakhari,
P.S.Kuchaikot, Distt- Gopalganj
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Shanti Kumar &
Mr. Dhananjay Kumar Tiwary, Advocates
For the O.P. No.2 : Mr. Shakti Sumar Kumar, Mr. Ghulam
Rabbani and Mr. Rajesh Ranjan, Advocates
For the State : Mrs. Sharda Kumari, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
13 25-07-2013Heard learned counsel for the petitioner, learned counsel for O.P.No.2 as well as learned Additional P.P. for the State.
2. Petitioner/husband/father has challenged the order dated 22.12.2010 passed by learned Principal Judge, Family Court-Gopalganj in Misc. Case No. 23F/2006 whereby and whereunder he had directed the petitioner/husband/father to pay Rs. 4000/- for each child in lieu of maintenance to be effective till their majority from the date of filing of case while rejecting the prayer of O.P./applicant, Anshu Devi.
3. Manifold argument have been raised on behalf of petitioner while assailing the order impugned which are (i) that there is no prayer on behalf of children for grant of maintenance Patna High Court CR. REV. No.209 of 2011 (13) dt.25-07-2013 2
(ii) there has been denial on the part of the petitioner/ O.P. with regard to parentage of the aforesaid two children (iii) when the learned lower court itself rejected the version of the applicant then in that event, she was under obligation to disclose under what circumstances, she had conceived (iv) the order impugned is suffering from vagueness on account of non disclosure of approximate age of both children because of the fact that order was made effective till the majority of the children (v) the evidence more particularly, father of Anshu Devi had not supported contention of Anshu Devi with regard to presence of these two children having begotten with the petitioner/O.P. (vi) the proceeding also is bad on the point of jurisdiction because the court concerned was not at all competent to entertain the petitioners pass orders. To buttress such contention, learned counsel for the petitioner also relied upon AIR 1963 SC 1521, (2004) 5 SCC 196.
4. While controverting the arguments so raised on behalf of the petitioner, it has been submitted on behalf of O.P. No.2 that for the purpose of asking for maintenance of the minor children they are not to be impleaded or arrayed as parties. It has also been submitted that that minor children should not be left on vagrancy in the background of dispute of parentage amongst their parents for that the petitioner may seek, if so advised, by filing a declaration suit on this very score and till then the maintenance Patna High Court CR. REV. No.209 of 2011 (13) dt.25-07-2013 3 amount granted by the court below will remain enforceable. Learned counsel for the O.P. also supported the view by citing decisions, 1979 Cr.L.J. 306, (2005) 2 PLJR 16 SC, (2010) 8 SCC
633.
5. In the case of Pyla Mutyalamma v. Pyla Suri Demudu, (2011) 12 SCC 189, the Hon'ble Apex Court has identified the power of the High Court while exercising revisional jurisdiction more particularly against an order relating to maintenance and for better appreciation the same is quoted below:-
14. In fact, we also find sufficient substance in the plea that the High Court in its revisional jurisdiction ought not to have entered into a scrutiny of the finding recorded by the Magistrate that the appellant was a married wife of the respondent, before allowing an application determining maintenance as it is well settled that the Revisional Court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction.
15. The High Court under its revisional jurisdiction is not required to enter into reappreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mandal v. State of Jharkhand3 that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited. The Revisional Court would not substitute its own finding and upset the maintenance order recorded by the Magistrate.
16. In a revision against the maintenance order passed in proceedings under Section 125 CrPC, the Revisional Court has no power to reassess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a Patna High Court CR. REV. No.209 of 2011 (13) dt.25-07-2013 4 married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the Revisional Court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both the child and the woman. This was the view expressed by the Supreme Court in Santosh v. Naresh Pal4, as also in Pravati Rani Sahoo v. Bishnupada Sahoo5. Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125 CrPC is that it should not be disturbed while exercising revisional jurisdiction.
6. As such, the matter in hand as pleaded and raised on behalf of petitioner is out of scope of revisional jurisdiction so far jurisdictional avenue is concerned, the same is also found to be not challenged at the score of petitioner while cross-examining the O.P. as well as also not raised during his own evidence, and on account thereof, the instant petition is found to be devoid of merit and is, accordingly, dismissed.
(Aditya Kumar Trivedi, J) perwez