Tag Archives: patna HC

#Patna High #Court #Lawyer Says “..My #Wife #Ran Away With #Driver, PLEASE help me..”

Outside Patna HC

Effect of women centric laws and arresting innocents. Karma visits every home 😦

LIVE BIHAR news

/// The #doctor wife of a #Patna #High Court #Advocate #ELOPED with her #driver Chhotu Kumar on Tuesday evening. As soon as this was known, the advocate husband immediately informed the police station. Police in the area immediately alerted the whole area via wireless. The police have been sensitized by this high profile case !!///

 

Roshan Kumar Jha


PATNA : पटना हाईकोर्ट के एक अधिवक्ता की डॉक्टर पत्नी मंगलवार शाम अपने चालक छोटू कुमार के साथ फरार हो गई। इसकी भनक लगते ही अधिवक्ता पति ने तत्काल थाना पुलिस को सूचना दी। हरकत में आई पुलिस ने तुरंत पूरे इलाके को वायरलेस के जरिए अलर्ट कर दिया। मामला हाई प्रोफाइल होने से पुलिस भी परेशान हो गई।

शहर की नाकेबंदी कर पुलिस ने वाहनों की जांच शुरू कर दी। इसी दौरान देर रात गौरीचक थाने की पुलिस को एक स्विफ्ट कार में एक युवक व महिला बैठे मिल गए। दोनों से सख्ती से पूछताछ हुई तो वे दोनों ही महिला डॉक्टर व चालक निकले।

गौरीचक थानाध्यक्ष सुनील चौधरी ने बताया कि कार सवार महिला डॉक्टर और उसके चालक को पकड़ लिया गया है। इस संबंध में फुलवारी शरीफ थाने की पुलिस से खबर मिली थी कि एक महिला चिकित्सक को उसका चालक लेकर फरार हो गया है। इसी के बाद वाहनों की चेकिंग शुरू की और दोनों को बरामद कर लिया गया।

उधर फुलवारीशरीफ थानेदार अजीत कुमार ने बताया कि महिला डॉक्टर के पति ने चालक छोटू पर अपनी डॉक्टर पत्नी के अपहरण का आरोप लगाते हुए लिखित तहरीर दी है। मामले की जांच की जा रही है। हालांकि समाचार लिखे जाने तक प्राथमिकी दर्ज नहीं हुई थी।

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Maintenance arrears – Detaining husband continuously MORE than 1 month illegal – Patna HC

Sec 125 CrPC Maintenance arrears. Continuous detention of non paying husband for more than a month is ILLEGAL ! Fresh applications are to be preferred by wife and fresh orders need to be passed for further detention. Judgment also refers to Supreme court Judgment and earlier Patna HC decisions and relevant sections

////provision under Section 125(3) Cr. P.C., we find that the issue has been settled by the Apex Court in (1999) 5 SCC 672 and by decision reported in 2000(1) PLJR 578. The Principle Judge, Family Court, after taking the petitioner in custody has not passed any fresh order for extension of the period in custody for fresh default of each month. Since the condition for keeping in custody as provided under Sub-section (3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one month?s period cannot be held to be legal. ////

The Hon Patna HC also affirmatively refers to the Judgement in Ashok Prasad -Versus- The State of Bihar & Another, reported decision in 2000 (1) PLJR 578

////So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such persons to imprisonment for a period of one month for the whole or any part of each month?s allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due, the question of sentencing the persons to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due.”////


IN THE HIGH COURT OF JUDICATURE AT PATNA

CR. WJC No.810 of 2010

MANOJ KUMAR PATEL @ MANOJ PATEL SON OF JOKHI
PATEL, RESIDENT OF MOHALLA NONIA TOLA, CHAKKI
PAKRI, P.S. SHIKARPUR, DISTRICT-WEST CHAMPARAN,
BETTIAH——PETITIONER .

Versus
1. STATE OF BIHAR THROUGH HOME SECRETARY,
BIHAR, PATNA.

  1. MUNITA DEVI WIFE OF MANOJ KUMAR PATEL, D/O
    MADAN PD. PATEL
  2. RAMBABU @ SONI
  3. SHYAM KISHORE, BOTH SONS OF MANOJ KUMAR
    PATEL ALL ARE RESIDENTS OF SAGAR POKHARA, P.S.
    BETTIAH TOWN, DISTRICT-WEST CHAMPARAN—–
    RESPONDENTS..

 

For the petitioner:- Mr. R.S.Sahay & Mr. J.J.Sahay,Advs.

For the State:- Mr. Kaushal Kishore Jha, SC-

18 5

16.09.2010

Petitioner is the husband of Respondent no.2 Munita Devi and father of respondent Nos. 3 and 4. Respondent no.2 and her children, respondent nos. 3 and 4 were deserted by the petitioner; as such she filed a petition under Section 125 of the Code of Criminal Procedure for maintenance of herself as well as her two children, from the petitioner. The case was registered as Maintenance case No. 308M/2005 and heard by Principal Judge, Family Court, West Champaran, Bettiah. The case, on contest was decided in favour of respondent nos. 2 to 4 and vide order dated 16.12.2009 the petitioner was directed to pay maintenance of Rs. 1000/- Per month to all three (respondent nos. 2 to 4) from the date of filing of maintenance case i.e. 27.9.2005. The order passed by the Family Court granting maintenance in favour of respondent nos. 2 to 4 was challenged by the petitioner by filing Criminal Revision No. 248 of 2010 which is still pending in the High Court. However, despite the fact that there was no stay order passed in favour of the petitioner, he did not pay a single penny to his legally wedded wife and children. He has also filed matrimonial suit (Divorce No. 188 of 2007) which is pending for adjudication. Since the monthly maintenance amount was not being paid to the respondents, as such respondent no.2 filed a petition before the Principal Judge, Family Court, West Champaran, Bettiah in order to get the maintenance order complied. Notice was issued to the petitioner to show cause, as such he appeared before the Court and made a prayer for staying the operation of the order passed in the maintenance case or for a direction that the petition be considered along with matrimonial divorce case. https://twitter.com/ATMwithDick/status/1016947220522979329

On perusal of the order-sheet of the maintenance case No. 308M/2005, it transpires that in response to show cause notice, the petitioner appeared before the Principle Judge, Family Court, West Chmparan and on 20.4.2010 the petitioner as well respondents were heard. One months time was allowed to the petitioner either to bring stay order or to make payment of entire arrears amount as well as month to month maintenance amount to the respondents. On 22.5.2010, when again the matter was taken up, both the parties were heard. Since, no stay order could be obtained by the petitioner from the High Court, as such the petitioner was asked to deposit the entire arrears of maintenance amounting to Rs. 1,65,000/-. Petitioner showed his reluctance in making payment, as such warrant of arrest was issued against the petitioner and in exception of it he was taken into custody. The matter was again directed to be listed on 5.6.2010. On 22.5.2010 petitioner has filed a petitio for staying the operation of order dated 16.12.2009, passed in maintenance case allowing maintenance in favour of respondents, but that was rejected and an order for taking the petitioner into custody was passed as provided under Section 125(3) of the Code of Criminal Procedure. On 2.6.2010 again the matter was taken up and the petition filed by the petitioner challenging the order taking into custody was taken up for consideration. Petitioner had challenged the order stating that he could not have been ordered to be imprisoned without taking recourse to the procedure for recovery of fine as provided under Section 421 of the Code of Criminal Procedure. There should have been a proper order of sentencing, before taking him in custody. However, the Principal Judge, Family Court, West Champaran, Bettiah, rejected the plea taken by the petitioner stating that Section 125(3) of the Code of Criminal Procedure in itself is a complete provision which provides that in case of failure to comply with the order for payment of maintenance amount warrant of arrest can be issued, till the realization of the amount. There is no necessity to follow the procedure provided for levying fines. The person may be sentenced for the whole or any part of each month?s non payment of maintenance amount in execution of the warrant. For unpaid maintenance amount the person concerned may be imprisoned for a term of one month or until payment is sooner made. Only required for issuance of warrant for the recovery of any amount due under this section is that there must be an application filed by the aggrieved wife / children before the court for realization of such amount within a period of one year from the date on which it became due. The Court if satisfied that there is just ground for not making payment of such amount was on filing such application, no warrant can be issued. Since, there was no ground available in favour of the petitioner and he refused to make payment the maintenance amount without there being any reasonable ground for it, the provision under Section 125(3) was applicable. Section 125 (3) Cr.P.C. provides jurisdiction to the court for issuance of warrant of arrest and for taking into custody in execution of it.

Counsel appearing for the petitioner submits that on simple reading of the provision under Section 125(3) Cr.P.C., it is apparent that before issuance of warrant of arrest or taking the defaulter into custody, he should be given proper opportunity to show the reason for non-payment and only in case the Court is satisfied that without any obvious reason the direction of the Court has been flouted, any order regarding issuance of warrant of arrest could have been passed. The period of imprisonment in any case could not have been exceeded beyond one month as for each period of default; there should have been fresh application and fresh order of custody for the unpaid maintenance amount for each month. In this regard the counsel for the petitioner placed reliance on a decision reported in the case of Ashok Prasad Vs. State of Bihar (2000 (1) PLJR 578) and also in the case of Shahada Khatoon and others vs. Amjad Ali and others (1999 (5) SCC 672). However on perusal of the impugned order, it transpires that the Court below has placed reliance on a decision of the Apex Court reported in the case of Kuldip Kaur vs. Surinder Singh (AIR 1989 SC 232), wherein it has been held that a person cannot be released from the custody till he makes the payment.

In the decision reported in (1999) 5 SCC 672, the short question which arose for consideration was whether the single Judge of Patna High Court has correctly interpreted the provision under sub-section (3) of Section 125 Cr.P.C., by directing the Magistrate that he can only sentence for a period of one month or until payment, if sooner made. The Apex Court held that the language of sub-section (3) of Section 125 Cr.P.C. is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach of non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter, the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. https://twitter.com/ATMwithDick/status/1016947220522979329

Counsel for the petitioner placing reliance on a decision of Division Bench of Patna High has submitted that the provision of sub-section (3) of Section 125 Cr.P.C. has been considered in the reported decision 2000 (1) PLJR 578. The facts in the reported decision were identical to the facts of the present case. Petitioner of that case had also filed a petition for his release and for holding that his detention in the custody is illegal. The petitioner- husband had been arrested on 7.8.1995 in execution of warrant of arrest issued on 1.8.1995 by the Judicial Magistrate for default in payment of maintenance amount and its? arrears. Since then, after every 14 days he was being remanded to judicial custody and continuously for three and half years he was in custody, the Division Bench while interpreting the jurisdiction of the Court under Section 125(3) Cr.P.C. held as follows:-

” From a reading of Section 125(3) Cr. P.C. it is clear that if any person who has been ordered to pay maintenance under section 125(1) Cr.P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realization of amount which are provided for levying fines and after execution of distress warrant it is found that any amount has remained unpaid the Magistrate may sentence such person for the whole or any part of each month?s allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment, if sooner made. So it is clear that the Magistrate has first to satisfy that the order has not been complied by a person without sufficient cause and if he finds that there is failure of the compliance of the order without sufficient cause he will issue a distress warrant for levying the amount due for every breach of the order in the manner provided for levying fines. It is further provided that after execution of distress warrant if the Magistrate finds that any amount has remained unpaid he may sentence such person for the whole or part of each month?s allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment whichever is earlier. The manner provided for levying fines is prescribed under section 421 Cr.P.C. So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such persons to imprisonment for a period of one month for the whole or any part of each month?s allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due, the question of sentencing the persons to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due.”

We find that the Court below has placed reliance on a decision reported in the case of Smt. Kuldip Kaur Vs. Surendra Singh and another ( AIR 1989 SC 232). But the question for consideration before the Apex Court in the matter was whether, in case of person refusing to comply the order of the Court to maintain his neglected wife or children, without reasonable cause, will be absolved of his liability, merely because he prefers to go to jail. Considering every aspect of the provisions under Sub-section (3) of Section 125 Cr.P.C., it was held that sentencing a person to jail is „mode of enforcement? and not „mode of satisfaction?. The liability can be satisfied only by making actual payment of arrears. The Supreme Court directed the defaulting husband be put in jail till he makes the payment of maintenance allowance. However, there is no finding whether this period can be only one month or more than one month.

On the other hand, counsel appearing for the State has raised objection regarding maintainability of the application of habeous corpus challenging legality of the detention, stating that since the petitioner is detained in jail for flouting the order of the Court under Section 125(3) Cr.P.C. and there is a provision for issuance of warrant of arrest under sub-section 3 of Section 125 Cr.P.C. for issuance of warrant of arrest and taking into custody, due to non-payment of arrears as well as monthly maintenance amount, the detention cannot be considered as illegal detention and writ of habeous corpus is not maintainable.

Counsel for the State has submitted, at best, the petitioner can challenge the legality of the order by filing criminal revision application before the appropriate forum. He has placed reliance on a decision reported in the case of Kanu Sanyal Vs. District Magistrate, Darjeeling (AIR 1974 SC 510), where the finding has been recorded as follows;- “Where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal.”

On consideration of different decisions on which reliance has been placed by the parties and the provision under Section 125(3) Cr. P.C., we find that the issue has been settled by the Apex Court in (1999) 5 SCC 672 and by decision reported in 2000(1) PLJR 578. The Principle Judge, Family Court, after taking the petitioner in custody has not passed any fresh order for extension of the period in custody for fresh default of each month. Since the condition for keeping in custody as provided under Sub-section (3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one month?s period cannot be held to be legal. Once it is held that the detention is illegal, there cannot be any question regarding maintainability of the writ application. Keeping in view that the petitioner has remained in custody beyond one month?s period, in the facts and circumstances of the case, his detention is illegal. Accordingly direction is being issued for release of the petitioner forthwith in connection with Maintenance Case No. 308M/2005, if not wanted to remain in custody in any other case.

The writ application stands allowed.

(Mridula Mishra,J.)

(Dharnidhar Jha,J.)

Akumar

No immediate arrest for #NON-#payment of #Sec125 #Maintenance

classic case where the Patna HC orders that non payment of maintenance cannot lead to immediate / direct arrest and that due process is to be followed

 

MONEY.jpg

 

Patna High court : No Arrest on Non Payment of Maintanence

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.563 of 2016

Md. Barik, S/o- Late Md. Haroon, Resident ofVillage- East Gharari, P.O.-Kharik Bazar, P.S.- Kharik (Naugachia), District-Bhagalpur….. …. Petitioner

Versus

1. The State of Bihar through Chief Secretary, Bihar, Patna.

2. Bibi Akila Bano, W/o- Md. Barik, D/o- Md. Niyamat,

3. Rubi Khatoon (minor)

4. Ruhi Khatoon (minor)

Respondent No.3 and 4 are minors and represented through their mother and natural guardian Respondent No.-2

Respondent No.2 to 4 are residing at Village- Ujani, P.O.- Maniya More, P.S.- Naugachia, District- Bhagalpur….. …. Respondents

Appearance :For the Petitioner : Mrs. Sarita Bajaj, Advocate

For the Respondent no.1 : Mr. Ashok Priyadarshi(GA-4)

CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGHORAL

ORDER2

02-06-2016

Heard learned counsel for the petitioner and learned counsel for the State.

It is indeed a matter of great regret that in spite of the decision of the Division Bench of this court, in the case of Laljee Yadav Vs. the State of Bihar, since reported in 2011 (4)PLJR 248, the learned In-charge Principal Judge, Family Court, Bhagalpur, has not followed the procedure as laid down in law and violated the petitioner’s fundamental right by wrongly ordering his confinement, on failure to pay maintenance as awarded under section 125 of the Cr.P.C. in Miscellaneous Maintenance Case No. 62 of 2008 by the Court of Principal Judge, FamilyCourt, Bhagalpur, a Miscellaneous Execution Case was registered and in that miscellaneous Execution case, the learned Judge issued warrant of arrest and detention of the petitioner having defaulted to pay maintenance.

This Court in the judgment aforesaid (Laljee Yadav) had elaborately dealt with entire procedure inasmuch as this court held that no person can be arrested by orders of the court. First upon default in payment of maintenance, asawarded in terms of section 125 Cr.P.C, it could only be recovered in the process as prescribed for recovery of fine, which wouldultimately be sent to the Collector for recovery of arrears of Rent Revenue in a proceeding under the Bihar and Orissa Public Demand Recovery Act, 1914.

The Court also noticed specific provisions of the Code of Criminal Procedure, which prohibited the arrest of a person. Form -18 (not Form- 15) as being used by the Principal Judge, Family Court, Bhagalpur as appended to Cr.P.C. is in respect of a person, who has been found guilty and convicted for default in payment of maintenance, which conviction has to be upon a fresh complaint for every arrears.

All these have been noted in the judgment of the Division Bench, as aforesaid.Regrettably, the learned Judge in spite of protest by the petitioner pay to take note thereof. It would be well advised for the Judge to acquaint himself with law before taking such drastic actions. The situation being what it is clear that in defiance of law,the petitioner has been detained. Thus, the detention of the petitioner being per se illegal and without jurisdiction. It would be violated of its constitutional rights under Article 21 of the Constitution.

The order issuing warrant and detaining the petitioner as passed by the Principal Judge, Family Court, Bhagalpur, is thus, set aside.

The petitioner is directed to be released from civil prison forthwith, unless he is required in any other criminal case.Let a copy of this order be communicated tothe Principal Judge, Family Court Bhagalpur, for information and necessary action

This writ petition is accordingly allowed.
(Navaniti Prasad Singh, J.)

 

Deserting 498A working wife looses right 2 enhanced maintenance. ALL Criminal cases quashed. Super Patna HC order

A 498a filing wife who treated her husband cruelly and deserted her husband with two small kids, tries to enhance the monthly maintenance. Patna HC sees thru her game and denies her any enhancement. It ALSO quashes ALL criminal cases filed by her !!

  • Wife leaves husband and two very small children. Leaves matri home in the middle of the night. Does NOT take any steps for kid’s custody
  • She is employed in a beauty parlor and earning * Her father owns a palatial house
  • On the other hand, husband is maintaining the kids and is providing best education for them
  • couple are divorced as lower court sees the wife’s desertion and cruelty,
  • wife tries to enhance her maintenance to Rs 15000 p.m.
  • Patna HC seeks her cruelty and desertion and refuses to enhance her maintenance
  • Patna HC also orders that “…all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment….”

This is an excellent judgment that should be used by harassed husbands

====================================

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.528 of 2012

Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tripolia Gate, P.S.- Alamganj, Distt-Patna …. …. Appellant/s

Versus

Sarika, D/O Shri Ishwar Chandra Prasad, W/O Sri Rajiv Roshan, R/O Talabpar, Near Bus Stand, Nasriganj, Distt-Rohtas …. …. Respondent/s

With

===========================================================

Miscellaneous Appeal No. 204 of 2013

Sarika, D/O Shri Ishwar Chand Prasad, W/O Sri Rajiv Roshan, R/O Talabper, Near Bus Stand, Nasariganj, Distt-Sasaram …. …. Appellant/s

Versus

Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tirpolia Ghat, P.S.- Alamganj, Distt-Patna …. …. Respondent/s

===========================================================

Appearance :
(In MA No.528 of 2012)
For the Appellant : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate
For the Respondent : Mr. Md. Khurshid Alam, Advocate

(In MA No.204 of 2013)
For the Appellant : Mr. Md. Khurshid Alam, Advocate
For the Respondent : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate

===========================================================

CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE JUSTICE SMT. NILU AGRAWAL

C.A.V. JUDGMENT

(Per: HONOURABLE JUSTICE SMT. NILU AGRAWAL)

Date: 06-10-2016

  1. The two miscellaneous appeal being M.A. No. 528 of 2012 (Rajiv Roshan Vs. Sarika) and M.A. No. 204 of 2013 (Sarika Vs. Rajiv Roshan) arise out of judgment and decree dated 28.04.2012, passed by Addl. Principal Judge, Family Court, Patna Patna High Court MA No.528 of 2012 dt.03-10-2016 in Matrimonial Case No. 242 of 2004 by which divorce petition filed by the husband against his wife has been decreed, marriage was dissolved and the divorce granted with direction to the husband to pay Rs. 6,000/- per month as permanent alimony to the wife till her remarriage.
  2. Heard the counsel appearing on behalf of the husband Rajiv Roshan and wife Sarika in both cases and with their consent both the appeals are heard together and being disposed of.
  3. Husband, Rajiv Roshan had filed Matrimonial Case No. 242 of 2004 seeking decree of divorce against his wife Sarika, stating that the marriage between them was solemnized on 04.05.1997 as per Hindu customs and rites. Out of the wedlock one son Arnav was born on 25.01.1998 and another son Pranav was born on 09.12.2000 and from the very beginning the behaviour of the wife was not cordial, hence, divorce was sought on the ground of cruelty. The husband found it very difficult to live with the wife, and the wife on 08.06.2004 (which the wife alleges to be 09.07.2004) left the matrimonial house and the two sons and went alone to her Naihar. The wife appeared before the court below and stated that she led a good conjugal life and it was the husband who was cruel and thrashed her and kept the two children and also demanded dowry for which Complaint Patna High Court MA No.528 of 2012 dt.03-10-2016 Case No. 3235(C)/2008 under Section 498-A of the Indian Penal Code has been filed by the wife.
  4. Wife Sarika has also preferred M.A. No.204 of 2013 arises out of the order passed in Matrimonial Case No. 242 of 2004 for enhancement of alimony from Rs. 6000/- to Rs. 15,000/- per month till her remarriage so that she may maintain herself properly but has not disputed the decree of divorce. She has also demanded jewellery including 25 bhari gold and Rs. 2 lakhs given in her marriage which the husband has withheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. The learned court below came to a finding that the act of the wife leaving the matrimonial house in the night and did not take any legal step for custody of her two sons since 2004 shows her lack of love and affection towards her children, who were very small at that time, and also her behaviour was cruel towards her husband, hence, factum of cruelty was established against the wife and hence decree of divorce granted.
  6. It may be noted that by an interim order the learned court below had granted maintenance of Rs. 7,000/- per month. This was challenged by the husband before this Court in C.W.J.C. No. 3863 of 2010 and the interim maintenance of Rs. 7,000/- was reduced to Rs. 3,000/- per month by order dated 30.03.2010 passed by this Court while issuing notice to the wife. Patna High Court MA No.528 of 2012 dt.03-10-2016 However, the said writ petition was disposed of on 05.01.2012. The interim maintenance of Rs. 3,000/- was directed to be continued till final order passed in Matrimonial Case No. 242 of 2004 by the court below. In the final order permanent alimony has been fixed at Rs. 6,000/- to be paid to the wife by the husband till remarriage of the wife, while granting decree of divorce.
  7. The wife although has not challenged the decree of divorce but seeks enhancement of permanent alimony to Rs. 15,000/- per month till her remarriage as well as the ornaments and cash given at the time of marriage. It has been submitted by learned counsel for the wife, Md. Khurshid Alam, that the family of the husband has a palatial house over 5.5 kathas of land and all the four brothers of the husband including the husband are living jointly. The husband also has 5 kathas of agricultural land and one shop from which he gets monthly rent of Rs. 4,000/- and also stated that the husband has a wholesale business of medicine in the name and style of Rap India and Roshan Surgico, hence, seeks maintenance as per status of her husband under Section 25 of the Hindu Marriage Act, 1955.
  8. However, learned Senior Counsel Sri D.K. Sinha for the husband Rajiv Roshan, in his reply submitted that the two sons born in the year 1998 and 2000 are living with him and Patna High Court MA No.528 of 2012 dt.03-10-2016 they are pursuing their studies in the best schools of Patna, namely, St. Michael High School, Digha, Patna and St. Xavier High School, West Gandhi Maidan, Patna in Class XII and VIII respectively. He submits that he has no medicine business and is just a salesman in medicine shop and gets Rs. 3,000/- per month and monthly rent of Rs. 2,000/- and has to look after the two sons and pay a huge amount of money more than two lakhs per year, for their education. It has also been submitted that the wife is the owner of a beauty parlour in the name and style of “Care and Glow” and is earning a very high income and some of her employees are getting Rs. 15,000/- per month from the said beauty parlour. In fact, the father of the wife has a palatial house at Nasriganj, Rohtas as well as an old mill at Delha Par, Gaya having two acres of land apart from 50 acres of agricultural land near Nasriganj, Rohtas. He also submits that the wife has filed a complaint case under Section 498-A of the I.P.C., Maintenance Case No. 102/2015, which is pending in the Family Court at Ranchi and Guardianship Case No. 31/2012, which is pending before the learned Principal Judge, Family Court, Patna. He, thus, submits that he has very little income and with that he has to provide maintenance and studies of the two sons who are growing up.
  9. From the facts aforesaid, it emerges that the father of the wife has a palatial house and substantial agricultural lands and if not as the owner she has admitted that she is working in the beauty parlour receiving income. The husband, on the other hand, is looking after the children maintaining them, who are pursuing their studies and has only a house where the joint family lives and some salary as well as rent.
  10. The finding of the trial Court on the aspect of divorce is not challenged by the wife. She abandoned the matrimonial house and her small children in 2004 never to return. She never claimed custody of her children nor she ever tried to meet them although guardianship case has been filed much after in 2012. Cruelty is not challenged. She is a working lady herself.
  11. The wife has not been living with her husband since 2004 and not having challenged the divorce, the decree of divorce is upheld. The two sons are living with their father who is providing the best of education to them in a reputed school at Patna. The wife even if not owner of beauty parlour but admits that she is a working lady. She has abandoned her two sons long back and had taken no steps for their custody since 2004 although a guardianship case has been filed recently in 2012.
  12. Considering the aforesaid facts, since the Patna High Court MA No.528 of 2012 dt.03-10-2016 husband has means to provide the best of education to the sons incurring huge amount of money as stated by the husband himself and that the wife is a working lady, the order dated 28.04.2012 passed by Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 requires no interference.
  13. It is also made clear that all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment.
  14. In the result, both the appeals are dismissed and the order passed by the Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 dated 28.04.2012 is upheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick  

     

    (Nilu Agrawal, J.)

    Navaniti Prasad Singh, J.

    I agree

    (Navaniti Prasad Singh, J.)

    Rajesh/-

    AFR/NAFR       AFR

    CAV DATE 05.09.2016

    Uploading Date 06.10.2016

    Transmission Date

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Interim maintenance KEEPS building up as husband is begging 4 seedy divorce! Court orders payment or case dismissal !!

As we all know Interim maintenance is one of the most painful things that can befall a husband when he seeks justice from a family court / civil court

This divorce case seems to have been dragging on since 2007. It’s the husband’s contention that wife is NOT eligible for ANY money. However, this husband seems to have been ordered to pay interim maintenance. After initial payments, husband keeps begging the courts for speedy trial and decision and has even obtained a HC order for speedy trial. However the case keeps dragging in the lower court and wife keeps pushing for the arrears , .. moolah !!

Arrears builds up to some lakhs, husband says he is unable to pay and the matter reaches HC.

However Hon HC feels that husband is wantonly delaying / denying maintenance and orders that he has to pay the arrears of interim maintenance (which runs into lakhs !!)

The Hon HC also orders that “…if within that reasonable time, the arrear and current maintenance with cost awarded above is not deposited or paid, the Court shall dismiss the divorce case for disobedience of the order of the trial court …..” !!!


IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.915 of 2016

======================================================

Priyanka Devi …. …. Opposite Party/Petitioner
Versus

Kaushal Kishor Gautam …. …. Petitioner/Respondent

Appearance :
For the Appellant/s : Mr. Chandra Kant

For the Respondent/s : Mr. Rakesh Kumar

CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO

C.A.V. ORDER

3 26-09-2016

(1) I have already heard the learned counsel, Mr. Chandra Kant for the petitioner and the learned counsel, Mr. Rakesh Kumar for the respondent.

(2) This Civil Miscellaneous application has been filed by the wife-petitioner for setting aside the order dated 08.06.2016 passed by Principal Judge, Family Court, West Champaran, Bettiah in Divorce Case No.138 of 2007 whereby the learned Court below rejected the application filed by the petitioner for recovery of arrears of maintenance amount of Rs.2,27,200 from the respondent-husband and till then stay of proceeding.

(3) It appears that the husband-respondent filed the aforesaid divorce case under Section 12(i)(d) of the Hindu Marriage Act. The cases of the parties are not required to be mentioned here. The wife appeared and is contesting the said case. During the pendency of the said divorce case, an application under Section 24 of the Hindu Marriage Act was filed by the wife who is petitioner herein. After hearing both the parties, the learned Family Court by order dated 26.06.2009 directed the husband- respondent herein to pay Rs.4,000 per month as maintenance and also Rs.15,000 lump sum as litigation cost.

(4) This order dated 26.06.2009 was challenged before this High Court by the husband in civil revision. The High Court set aside the order and remanded the matter directing to pass a fresh order after recording finding on the question of income of husband. After remand, the Family Court by order dated 13.01.2010 recorded finding about the income and then again directed the husband to pay Rs.4,000 as maintenance and Rs.15,000 as litigation cost. Against the said order, the husband filed CWJC No.20647 of 2011. After hearing both the parties, the said writ application was dismissed on 21.06.2012 which is Annexure 2 to this Civil Miscellaneous application.

(5) After the above order, the husband filed an application before the Family Court for recall of the order dated 13.01.2010. The said application was rejected by the Family Judge on 27.07.2013 and the husband-respondent was directed to comply the order.

(6) On 02.08.2014, the wife filed application for directing the husband to pay Rs.1,76,000, the arrears of maintenance, stating that because of paucity of money, she is unable to contest the case and if maintenance is not paid, she may be permitted to leave the case. Thereafter, the husband again filed CWJC No.2161 of 2014 which was dismissed on 21.04.2015 and while dismissing this writ application this Court directed the Court below to decide the case within six months. Again, CWJC No.1471 of 2016 was filed by the husband-respondent for directing the Court below to decide the matter as early as possible which was again dismissed by order dated 16.05.2016. Thereafter, the wife-petitioner filed application praying for a direction to the husband to pay the arrears of maintenance as directed by the Court. The arrears of maintenance is Rs.2,27,200/- and the wife has no money to contest the case but the learned Court below by the impugned order rejected the application and proceeded to decide the divorce case.

(7) The learned counsel for the petitioner submitted that the order under Section 24 of the Hindu Marriage Act was passed in the year 2009. After some payment, the husband stopped the payment of maintenance. He challenged the order repeatedly before the High Court which has already been rejected but instead of paying that huge amount of arrear, the husband is proceeding for the disposal of the case expeditiously. The petitioner has no money, therefore, she is unable to contest and if amount is not paid, as directed by the Court, it will be denial of justice to the petitioner.

(8) On the other hand, the learned counsel for the respondent submitted that there is already an order by this Court for expeditious disposal of the divorce case. It is incorrect to say that the wife-petitioner has got no money to contest the suit. According to the learned counsel, the wife is not entitled to get the maintenance amount. It cannot be said that unless the arrear amount is paid, the case cannot be decided. The Court below is proceeding to decide the case, therefore, the further proceeding cannot be withheld or stayed because of non-payment of the arrears of maintenance and also the current monthly maintenance. The Court below is deciding the case in view of the direction of the High Court. If the petitioner has no money then how she is filing this case before the High Court. Therefore, the intention of the wife is only to delay the disposal of divorce case. Moreover, the order passed by the Court below is legal and valid, therefore, it cannot be interfered with in exercise of supervisory jurisdiction.

(9) It is admitted fact that the husband has been directed to pay Rs.4,000 per month as maintenance under Section 24 of the Hindu Marriage Act in the year 2009. After some payment, he stopped the payment. Now, there is huge amount of arrears as claimed by the petitioner and this amount, which is an arrear, is not denied by the husband. The wife is repeatedly filing the application and praying for directing the husband to comply the order otherwise she will be unable to contest the suit. The order passed by the Family Court directing the husband to pay the arrears of maintenance and current monthly maintenance has been upheld by the High Court but the husband is not complying the direction of the Court which is upheld by the High Court. The divorce suit is proceeding. Since the wife had no source of income for her maintenance and to defend her in the divorce suit, the Court directed the husband to provide the cost of maintenance and litigation. If the cost of maintenance and the litigation cost is not paid by the husband then the wife will be defenceless. In other words, she will be unable to defend the case filed by the husband and the case will be ex parte against her. However, from the facts stated above, now it becomes clear that intentionally the husband is not obeying the order of the Court and thereby he is depriving the wife of her right to defend the case. In one hand, he is insisting the Court to proceed and decide the case expeditiously and on the other hand, he is disobeying the order of the Court. This conduct of the husband shows that his intention is to get the case decided without the defence of the wife. No doubt, wife can file a petition under Order 21 Rule 37 C.P.C. for recovery of the amount and the husband can be proceeded against the contempt of Court also for disobedience of the Court’s order, but Section 24 of the Hindu Marriage Act empowers the Court to make an order for maintenance and for expenses to a needy and indigent wife. If the amount is not made available then the very object and purpose of this provision shall be defeated. Wife cannot be directed in all cases to proceed for execution for recovery of the amount which will take much time and thereby again it will delay the disposal of the case. Law is not so powerless to bring the husband to book. If the husband has failed to make the payment, as directed by the Court, his defence/case can be struck out. The person who is disobeying the order of the Court cannot be allowed to be heard on merit considering his conduct. After all he is approaching the Court for justice as claimed by him but at the same time, Court has to administer justice to both the parties. The wife is also entitled equally to get justice and for that she needs the maintenance and litigation cost and, therefore, the Court has directed the husband. If the husband is not obeying the order of the Court then why the Court should oblige and proceed to hear his case.

(10) A Division Bench of the Himachal Pradesh High Court in the case of Jai Singh v. Smt. Khimi Bhiklu and another, AIR 1978 Himachal Pradesh 45 has held that the husband who was ordered to pay interim alimony and expenses pendente lite, deliberately and contumaciously flouted the order, it is open to the court to pass an order striking out the defence of the husband by invoking inherent powers under S. 151 C.P.C.

(11) The Odissa High Court also expressed the same view in the case of Ghasiram Das v. Srimati Arundhati Das and another, AIR 1994 Orissa 15. It has been held that the purpose of Section 28 could not be allowed to defeat by driving the indigent spouse to enforce the order of maintenance pendente lite in an execution proceeding in every case. The court in appropriate circumstance can enforce its order by striking out the pleadings of defaulting party.

(12) The Kolkata High Court in AIR 1962 Calcutta 88 Smt. Anita Karmokar and another v. Birendra Chandra Karmokar has held that “the object of S.24 of the Hindu Marriage Act is to enable an indigent spouse, who has no independent means or income of her own, to conduct her defence without being handicapped in any way by poverty. A husband, on whom an order under S.24 has been made, but who refuses to pay under the order and aspires yet to go on with his suit must not be encouraged. The English principle, followed in matrimonial causes, of staying the suit in such circumstances is the best way of dealing with such a situation and the said principle should be applied in proceedings under the Hindu Marriage Act, 1955 as a rule of justice, equity and good conscience.”

(13) A Division Bench of High Court of Punjab in the case of Smt. Malkan Rani v. Krishan Kumar, AIR. 1961 Punjab 42 has held that “if the court directed the husband under S. 24 of the Hindu Marriage Act to pay the wife maintenance pendente lite and the litigation expenses, the court has inherent power to stay the proceedings till the husband paid the amount which he has been ordered to pay under S. 24. The enforcement of the order otherwise than by execution is not prohibited or excluded by S. 28.”

(14) In view of the above decisions of the various High Courts, in my opinion, the orders passed by the Court below, in not staying the further proceeding till the arrears and current monthly maintenance and litigation cost is paid by the petitioner, will occasion failure of justice and put the wife in a position as if she has not defended the case. As stated above, intentionally the husband is disobeying the order of the Court.

(15) In the result, this Civil Miscellaneous application is allowed with cost of Rs.10,000 to be paid by the husband- respondent to the wife-petitioner. The impugned order is set aside. The further proceeding in Divorce Case No.138 of 2007 pending in the Court of Principal Judge, Family Court, West Champaran shall remain stayed till the arrear amounts of maintenance and aforesaid cost is deposited/paid by the husband to the wife within a reasonable time. The Court shall fix the said reasonable time and if within that reasonable time, the arrear and current maintenance with cost awarded above is not deposited or paid, the Court shall dismiss the divorce case for disobedience of the order of the trial court merged in the order of the High Court.

(Mungeshwar Sahoo, J)

Saurabh/-A.F.R.

U T