MISCELLANEOUS APPEAL No.590 OF 1998
Against the order dated 13.11.1998 passed by
the Principal Judge,Family Court, Patna in
Maintenance Case No. 291 of 1988;
SMT.MRIDULA DEVI-----------------Appellant
Versus
THE PRINCIPAL JUDGE,FAMILY -----Respondents
COURT
For the Appellant:-Mr.Dhurb Narayan,Senior
Advocate & Mr. Dilip Kr.
Jha, Advocate
For Opp-Party No.1:Mr. Dhananjay Prasad &
Mr. Dhirendra Nath Jha,
Advocates
For Opp-Party No.2:Mr. Jitendra Prasad Singh
& Mr.Kaushal Kishore
Sinha,Advocates
P R E S E N T
THE HON’BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD
THE HON’BLE MR.JUSTICE DR. RAVI RANJAN
Prasad & Ranjan,JJ:-In a proceeding under Section
145 of the Code of Criminal Procedure,Sub-
Divisional Judicial Magistrate,Patna by order
dated 11.6.1990, directed the husband-respondent
No.2 Sita Ram Singh to pay to his wife respondent
no.1 Bimla Devi, maintenance at the rate of
Rs.500/- per months. Husband assailed the said
order before the Revisional Court, but did not
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succeed. Thereafter he filed application for
quashing the order of the Magistrate granting
maintenance and the dismissal of the revision
application before this Court. It appears from
the judgment itself,that by order dated 23.6.1992
passed in the aforesaid case this Court directed
the husband to pay Rs.250/- per month as
maintenance allowance till the disposal of the
case. It is further apparent from the impugned
judgment that the husband went on depositing
money at the rate of Rs.250/- per month in
compliance of the order. However, ultimately the
aforesaid criminal miscellaneous case was
dismissed. Thereafter the wife filed a petition
for realization of Rs.40,000/- which was due to
her as arrears of maintenance. She prayed for
issuance of distress warrant. The learned
Magistrate directed for issuance of distress
warrant against the husband and in execution
thereof, Flour Mill and Howler were seized. In
order to protect its auction sale, appellant
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Mridula Devi claiming to be the owner of the
Flour Mill and Howler deposited Rs.36750/-.
Appellant alleged that the police illegally
seized the property belonging to her in execution
of the distress warrant. Accordingly, she prayed
for appropriate action against the police
authority and release of the amount. Wife in
response thereto stated that claim of Mridula
Devi that she is the owner of the property is
incorrect and in fact she is a concubine of her
husband and in order to deprive her the
maintenance she is claiming to be its owner.
The Principal Judge, Family Court, Patna on
consideration of the materials on record rejected
her prayer by order dated 13.11.1998 passed in
Maintenance Case No. 291(M) of 1988.
Aggrieved by the same she has preferred
this appeal.
Mr. Dhurb Narayan, Senior Advocate,
appearing on behalf of the appellant contends
that the Court below ought to have accepted the
plea of the appellant that the property belonged
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to her and consequently, directed its release and
the amount deposited by her. In this connection,
our attention has been drawn to the documents
filed by the appellant in the Court below. A
Chircut dated 28.8.1997 was filed on behalf of
the appellant showing that she had paid
consideration money to the husband for the land
upon which the machine room is existing. The
Court below did not place any reliance on the
said document taking into account that the
electricity receipts have been filed of the year
1989 and, as such, the plea put fourth by the
appellant that she paid the consideration money
to Sita Ram Singh in 1997 is not fit to be
believed. It observed that when the land was
sold in the year 1997 how could the receipts of
the electricity bill of the Mill standing over
that could be of the earlier years. The Court
below also took into consideration order dated
30.4.1998 passed in Insolvency Case No. 1 of
1997 which shows that it is the husband who had
filed the Insolvency case for stay of the
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distress warrant issued by the Family Court.The
affidavits of three persons supporting her case
have been disbelieved as same came into
existence after the dispute has arisen. Not only
this the amount for release of the property was
not deposited by the appellant but the husband’s
father.
It is relevant here to state that according
to the wife, appellant is the concubine of her
husband and the specific direction was given to
her by the Court below to state her status.
Despite that she declined to do the same.
Taking into account the aforesaid fact
the Court below came to the conclusion that the
property seized in execution of the distress
warrant in fact belonged to the husband and this
appellant in order to deprive the wife the amount
of maintenance as claimed that to be her
property, we are of the opinion that the Court
below on consideration of the materials on record
rightly held so and no case for interference is
made out.
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In the result, we do not find any merit in
the appeal and it is dismissed with cost which is
assessed at Rs.1100/- to be paid by the appellant
to respondent no.1.
(Chandramauli Kr.Prasad,J.)
(Dr. Ravi Ranjan,J.)
Patna High Court
Dated the 17th of July,2008
A.Kumar/NAFR