IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.712 of 2008
ANIL KUMAR
Versus
SMT. SITA DEVI
WITH
C.R. No.1886 of 2007
ANIL KUMAR
Versus
SITA DEVI
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5 1.7.2008 Heard Counsel for petitioner in both the civil revision applications
arising out of a matrimonial suit.
In the first Civil Revision Application No. 1886 of 2007, the
petitioner is aggrieved by an order dated 31.7.2007 fixing the interim
maintenance to the tune of Rs. 1,000/- per month as also Rs. 5,000/-
towards the cost of litigation under Section in 24 of the Hindu Marriage
Act.
In the second Civil Revision Application No. 712 of 2008, the
petitioner is aggrieved by an order dated 22.4.2008 directing issuance of a
distress warrant against the petitioner for having not complied the
aforementioned order of payment of monthly maintenance.
Counsel for the petitioner submits that the amount of
maintenance of Rs. 1,000/- per month in the impugned order dated
31.7.2007 is against the materials on record specially when it is taken into
consideration that the petitioner is only a Feriwala and has hardly an
income of Rs. 20-30/- per day. This Court however is not impressed with
such submission for a simple reason that such an amount of Rs. 1,000/- per
month cannot be held to be excessive. The Court below in fact has made a
threadbare analysis of evidence of both the side while holding that the
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petitioner is having income from business of manufacture and sale of
mirror and that he also owns a house. In such circumstances, no error can
be said to have committed by the Court below in passing the impugned
order directing payment of Rs. 1,000/- per month for maintenance of the
wife and his minor child. Consequently, that part of the order by which the
Court below has directed the petitioner to pay the amount of maintenance
pendente-lite at the rate of Rs. 1,000/- per month and Rs. 5,000/- as
consolidated amount towards the cost of litigation is upheld.
Counsel for the petitioner next contends that it would be very
difficult to give the entire amount of arrears in one go taking into account
that the petitioner’s liability begins from 14.11.2005 when such an
application came to be filed for this purpose.
This Court taking into consideration the finding of the Court below
that the petitioner is having a small business and it would be difficult for
him to pay the entire amount of arrear in one go, would direct him to pay a
sum of Rs. 2,000/- per month towards the arrear in addition to Rs. 1,000/-
per month by way of current monthly maintenance till he clears the entire
amount of arrear from 14.11.2005 as directed by the Court below. The
petitioner however will be entitled to adjust any amount which has already
been paid by him to the opposite party on the head of monthly
maintenance during the pendency of this application. The direction of the
Court below would accordingly stand modified to the extent indicated
above.
Counsel for the petitioner next contended that the petitioner has not
made payment of the amount of maintenance as fixed by the Court below
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in the order dated 31.7.2007 and the Court below by an order dated
22.4.2008 for realization of the said amount had issued a distress warrant
which has been separately assailed by the petitioner in Civil Revision No.
712/2008. Counsel for the petitioner had very vehemently submitted that
there is no provision in the Hindu Marriage Act which the Court below
could have passed the order for issuance of the distress warrant. In this
connection, he had also referred to the provision of Section 125 of the
Code of Criminal Procedure to support his contention that there is no
similar power to the Family Court to issue distress warrant while dealing
with a case under Hindu Marriage Act.
This Court without going into the said issue of jurisdiction to issue
a distress warrant for realization of amount under Section 24 of the Hindu
Marriage Act, would quash the impugned order dated 22.4.2008 on the
ground that now the petitioner himself has offered to pay the amount as
directed by the Court below in the manner indicated above in this order.
At this stage, Counsel for the petitioner submits that the Court
below may be directed to ensure that the matrimonial case itself is
disposed of at an early date. In the facts of this case, this Court would
observe that the Court below will make its best endeavors to dispose of the
suit at an early date preferably within a period of one and a half years from
the date of receipt/production of a copy of this order.
With the aforementioned observations/directions, both the civil
revision applications are disposed of.
Rsh (Mihir Kumar Jha, J.)