IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.36 of 2007
MUKESH KUMAR
Versus
STATE OF BIHAR & ORS
With
C.R. No.456 of 2008
MUKESH KUMAR
Versus
THE STATE OF BIHAR & ORS
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7 11.7.2008 Heard Counsel for the parties.
The first Civil Revision Application No. 36/2007 is with
regard to an order of the Family Court fixing an amount of Rs.
6,000/- as maintenance for the wife/opposite party and minor
daughter in purported exercise of Section 125 of the Code of
Criminal Procedure.
Counsel for the petitioner has basically made two
submissions namely (i) the order dated 18.10.2006 passed by the
Family Court without making an effort for amicable settlement as is
enjoined under Section 9 of the Family Court Act read with rules is
vitiated by an apparent jurisdictional error (ii) the findings with
regard to the income of the petitioner having been not arrived on any
evidence, the impugned order directing petitioner to pay Rs. 6,000/-
(Rs. 3,000/- for the wife and Rs. 3,000/- for the daughter) also suffers
from material irregularity.
On the other the Counsel for the opposite party/wife has
submitted that the question of amicable settlement was impractical
and in fact out of question because once a serious allegation had
already been leveled by the petitioner against the opposite party on
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her personal character of leading an adulterous life, there was no
scope for the opposite party to accept an amicable settlement. He has
also given certain background for this aspect including filing of the
criminal cases and other litigations to justify that as a matter of fact
in such circumstances, the Family Court which was a transferee court
in the proceedings under Section 125 Cr.P.C. was of the opinion that
no effective result could have been obtained from such amicable
settlement.
In the opinion of this Court, this issue should have been
looked into and decided by the Court below with a complete clarity
after recording the statement of both husband and wife in person
because at times the sincere effort of amicable settlement made by
the Court does not yield a fruitful result. Accordingly, this Court
would direct the Family Court to make a fresh concerted effort for an
amicable settlement.
However, the issue of amicable settlement apart the main
question is with regard to the quantum of the amount of maintenance.
In this regard, it is the submission of the Counsel of the
petitioner/husband that the amount of Rs. 6,000/- imposed on the
petitioner is absolutely without any basis. He has in this context
referred to the pleadings on record namely the application filed by
the opposite party/wife under Section 125 of the Code of Criminal
Procedure wherein all that on the question of income has been said
can be found in paragraph no.5 of her application which reads as
follows :-
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**5 ;g fd foi{kh ,d i<+k fy[kk **d`f"k foKku^^ esa ih-,p-Mh- fd;k
gS vkSj dydRrk esa fdlh futh izfr"Bku esa 15]000@& :I;s ekfld ij dk;Z
djrk gS rFkk foxr 6 ekg l svc fdlh vU; izfr"Bku esa dk;Zjr gSA foi{kh
dks viuk nks eaftyk edku fNrkSuh] eksfrgkjh esa fLFkr gS] ftls uhps ds [k.M
esa fdjk;k ls 3]000@& :I;k ekgokjh vkenuh gSA foi{kh dks viuh iS=kd d`f"k
;ksX; Hkwfe Hkh gS] ftlls lykuk vkenuh djhc 1 yk[k :I;k gSA bl rjg ls
foi{kh dks vius uhft osru] fdjk;k ds edku ,oa d`f"k mRiknu ls djhc
25]000@& :i, ekgokjh vkenuh gSA nwljh rjQ vkosfndk ¼vkHkk flUgk½ ,d
vkfJr efgyk gS vkSj 'kknh ds ckn ls og foi{kh ij gh iw.kZ :is.k vkfJr
gSA izkFkhZ la[;k 2 Hkh iw.kZ :is.k vius firk ¼foi{kh½ ij vkfJr gSA^^
Counsel for the petitioner in this context has also placedbefore this Court a certified copy of the rejoinder by way of show-
cause filed by the husband/opposite party wherein the
aforementioned statement of the wife contained in paragraph no.5
has been controverted by him in the following manner:-
“7. That, in para no.5 of the petition the
status of opposite party is given and in this respect,
it is humbly submitted that the opposite party is
Ph.D. in agriculture science but it is false to say that
he works and his salary is about fifteen thousand.
Due to act of this petition, the opposite party got
sentimentally disturbed, so he does not find himself
to work any where and so far the house is concerned
it is not of opposite party rather it is of his mother
and it is not ancestral property so the petitioner is
not competent to claim for share so far land
properties are concerned, if these will be partitioned
in the family, he will get six to seven Katha of the
cultivable land, which is not sufficient to feed a
person for a couple of months. It is false to say that
he has got income of twenty five thousand per month
rather he is dependent upon his father. It is not out
4of way to mention before your honour that the
petitioner filed a complaint case under Section
496(A) I.P.C. including other, sections of I.P.C. in
which she has admitted that her husband is an
educated unemployed person, so she herself making
two different statements, which is sufficient to show
that she is not at all fair and all the cases are being
filed motivatively and intentionally. She wants to not
only harass opposite party rather wants to rain the
entire family as she has made accused to each and
every family members as well relations of opposite
party in case under Section 498(A) I.P.C. & others
sections of I.P.C. Photo copy of C.C. of Bettiah
Mufassil P.S. Case No. 114/2003 is being file for
your honours kind perusal.”
Counsel for the petitioner in the light of the aforementioned
pleadings, submits that when an issue on the income of the petitioner
had emerged, the Court below was required to look into evidence
adduced by the parties in support of their respective claim. He has
however, submitted that the maintenance case came to be decided
only on the basis of the aforementioned pleadings inasmuch as no
evidence was adduced before the Court below and in that view of the
matter, the impugned order cannot be sustained.
Counsel for the wife opposite party however submitted that
when the petitioner husband did not produce his salary statement/pay
slip a bald denial by him would not have been sufficient to disbelieve
the specific assertion of the wife opposite party.
In the opinion of this Court, the submission of the Counsel for
the petitioner is well founded.
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It is well settled that in a proceedings under Section 125 of
the Code of Criminal Procedure the Court while deciding the issue of
income take the averments made in the pleadings of the parties but
then the income of a person being a question of fact is required to be
decided in the light of evidence and for that purpose, the Court below
had to examine the oral and documentary evidence adduced by both
the parties. That having been not done, this Court cannot approve the
impugned order granting Rs. 6,000/- per month (Rs. 3,000/- for the
wife and Rs. 3,000/- for the child) and accordingly, the impugned
order is hereby set aside.
As a consequence of setting aside the impugned order, the
Court below is directed to take up the hearing of this case under
Section 125 of the Code of Criminal Procedure by directing the
parties to lead their evidence. The evidence which has to be led by
both the parties must be completed within a period of three months
from the date of receipt/production of a copy of this order. It is
however, made clear that the income of the petitioner being a fact
under his special knowledge, he must discharge the onus on him
under Section 106 of the Evidence Act and must produce his latest
salary statement duly certified by his employer in absence whereof,
the assertion of his wife, the opposite party will have to be accepted.
Upon completion of evidence, the Court below must pass a final
order within next two months from the date of closing of evidence by
both the parties.
This Court would however direct the petitioner/husband to
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keep on paying a sum of Rs. 6,000/- for the aforementioned period
till the final order is passed by the Court below under Section 125 of
the Code of Criminal Procedure. It goes without saying that in case
the amount is not enhanced or is not reduced, then the petitioner will
be liable to pay the same amount even for the future as well as the
arrears from the date of filing of the application by the wife opposite
party but in case the amount of maintenance is reduced, the Court
below would also pass an order for adjustment of excess amount paid
if any, either earlier or under the present order of this Court.
With the aforesaid observations/directions, the first Civil
Revision Application No. 36/2007 is disposed of.
C.R. No. 456 of 2008
In the second Civil Revision Application No.456/2008, the
petitioner/husband has assailed the order of the Court below, the
Principal Judge, East Champaran, Motihari in Divorce Case No.
158/2005 which has been filed by the wife. By the impugned order,
the Court below has allowed a consolidated amount of Rs. 25,000/-
towards the litigation cost taking into account that the opposite party
has to travel on each and every date of the case from Bettiah to
Motihari and that she is contesting the matter for last 2-3 years.
This Court taking into account that the litigation which has
started way back in the year 2003 and the same is continuing for last
five years and is still likely to go for a couple of years in the Court
below, would not find the amount of Rs. 25,000/- to be either
excessive or unreasonable and therefore, no interference is called for
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in the second Civil Revision Application no. 456/2008 and the same
is accordingly dismissed.
Rsh (Mihir Kumar Jha, J.)