Jharkhand High Court
Hablu Modak Alias Kalyan Modak vs The State Of Jharkhand And Anr on 10 May, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 169 of 2015
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Hablu Modak @ Kalyan, S/o Maga Ram Modak, R/o Village-
Damodarpur, P.O. Damodarpur, P.S. & District-Dhanbad.
...Petitioner
Versus
1. The State of Jharkhand.
2. Monika Modak, W/o Hablu Modak, D/o late Anil Singh Modak,
Resident of Village-Ankduara, P.O. Ankduara, P.S. Nirsa
( Kalubathan), District-Dhanbad.
....Opposite Parties
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Mahavir Prasad Sinha, Advocate
For the State : A.P.P.
For O.P. No. 2 : Mr. S.K. Laik, Advocate
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04/10.5.2017Heard the parties.
This application is directed against the order dated 31.1.2015, passed in Cr. Misc. No. 06/2012 by the learned Principal Judge, Family Court, Dhanbad, whereby and whereunder the application preferred by the opposite party no. 2 under section 127 Cr.P.C. has been allowed and monthly maintenance has been enhanced from Rs.200/- to Rs.3,000/- per month.
It has been submitted by the learned counsel for the petitioner that earlier also a maintenance case was filed, which was dismissed as withdrawn giving warning to the opposite party no. 2 not to harass the petitioner. It has further been submitted that a decree of divorce was granted in Title Matrimonial Suit No.2/1996, which was an ex parte decree and infact matter has been compromised outside the court and the opposite party no. 2 has taken Rs.11,000/- as permanent alimony. It has also been submitted that in M.P. Case No. 141/2007, learned Principal Judge, Family Court, Dhanbad had given a warning to the opposite party no. 2 not to harass the petitioner, which could be reflected in the order dated 25.1.2012. It has been submitted that without proper assessment of the income of the petitioner, an amount of Rs.3,000/- per month as monthly maintenance has been directed. Learned counsel submits that in view of the aforesaid fact, impugned order dated 31.1.2015, passed in Cr. Misc. No. 06/2012 be quashed and set aside.
Mr. S.K. Laik, learned counsel for O.P. No. 2, has referred to the petition filed by the O.P. No. 2 and has stated that the petitioner is a Peon in P.K. Roy Memorial College and is getting a handsome salary -2- of Rs.15,000/- per month. It has been submitted that although the petitioner has claimed that matter has been compromised outside the Court and Rs.11,000/- as permanent alimony has been given to the opposite party no. 2 but since in absence of producing the evidence in support of such contention, learned court below has rightly rejected the assertions made by the petitioner.
It appears that in the year 1987, an application under section 127 Cr.P.C. was filed by the opposite party no. 2 being M.P. Case No. 05/1987, in which an order was passed on 22.7.1987 granting maintenance of Rs.200/- per month to the opposite party no. 2. Subsequently, it appears that another case was filed being M.P. Case No. 141 of 2007, which was dismissed by the learned Principal Judge with a warning to the opposite party no. 2 not to harass the petitioner in future. The main contention of the petitioner seems to be with respect to the ex parte decree of divorce obtained by the petitioner and the subsequent settlement, which has been entered into, in which Rs.11,000/- was given to the opposite party no. 2 as permanent alimony. The court below has rightly refused the contention advanced by the learned counsel for the petitioner since no proof of settlement for Rs.11,000/- as permanent alimony was produced in course of proceeding under section 127 Cr.P.C. However, with respect to the amount of Rs.3,000/- per month, which has been granted as monthly maintenance, it appears that although assertion has been made by the learned counsel for O.P. No. 2 that petitioner is a permanent employee in P.K. Roy Memorial College and he is getting a handsome salary of Rs.15,000/- per month but no proper assessment of the income of the petitioner could be detected in the impugned order dated 31.1.2015. In such circumstances, therefore, the impugned order dated 31.1.2015, passed in Cr. Misc. No. 06/2012 by the learned Principal Judge, Family Court, Dhanbad, is set aside and the matter is remanded back to the learned court below to pass a fresh order in accordance with law only with respect to the quantum of maintenance to be awarded to the opposite party no. 2 after proper assessment of the income of the petitioner by giving opportunity of hearing to the petitioner as well as to the opposite party no. 2 and by adducing further evidence, if necessary.
The exercise, as indicated above, should be completed within a period of two months from the date of receipt/production of a copy of -3- the order.
This application stands disposed of with the aforementioned observations and directions.
Pending I.As, stand disposed of.
(Rongon Mukhopadhyay, J) Rakesh/