Krishna Kumar Yadav v. The State Of Bihar

Heard the parties. By the impugned order dated 17th July 2009 passed in Miscellaneous (Maintenance) Case No. 17 of 2009 by the learned Principal Judge, Family Court, Madhepura claim of maintenance made on behalf of the opposite party no. 2 for herself and her minor children in terms of section 125 Cr.P.C. has been allowed and the petitioner has been directed to pay maintenance at the rate of Rs. 4000/- per month to the opposite party no. 2 and her children from the date of filing of the case. Learned counsel for the petitioner submits that there is no dispute of relationship between the petitioner and the opposite party no. 2, and they are legally wedded husband and wife Patna High Court CR. REV. No.1310 of 2009 (4) dt.11-12-2012 respectively. It is contended that the petitioner is a Class IV employee and is working as Chain Puller in the Department of Irrigation. It is the case of the petitioner that at the relevant time, when impugned order was passed, he was drawing a salary of Rs. 7400/- per month only. However, the learned counsel for the petitioner has assailed the impugned order primarily on two grounds. Firstly that there are three daughters and two sons, born out of the wedlock of the petitioner and the opposite party no. 2, who all are majors, and, therefore, they are not entitled to get maintenance from the petitioner in terms of section 125 Cr.P.C. Secondly, the quantum of maintenance fixed by the learned Family Court is excessive and that is required to be reduced suitably by keeping in mind the total income of the petitioner. Learned counsel appearing on behalf of the opposite party no. 2 has opposed the prayer made on behalf of the petitioner and has supported the impugned order. According to him, out of three daughters and two sons, born out of the wedlock of the petitioner and the opposite party no. 2, only two daughters are married and both sons and one daughter are still minor. It is pleaded that from the agriculture also the petitioner is having substantial annual income. Therefore, according to him, quantum of maintenance fixed by the learned Family Court is not excessive, Patna High Court CR. REV. No.1310 of 2009 (4) dt.11-12-2012 and is required to be affirmed by this Court. However, a valid grievance has been raised on behalf of the opposite party no. 2 that despite order of maintenance passed by the learned Family Court, she is not being paid any amount of maintenance by the petitioner till date. After having heard the parties and on consideration of the materials available on the record, this Court finds that the petitioner had raised objection regarding maintainability of the claim of maintenance, made on behalf of all the children, born out of the wedlock of the petitioner and the opposite party no. 2. It was claimed by the petitioner that the children are no longer minors. However, from perusal of the impugned order, this Court finds that no finding of fact has been recorded by the learned Family Court with respect to minority of all the children. This Court further finds that the learned Family Court has not separately determined the quantum of maintenance payable to the opposite party no. 2 as also to each of the children. Under the mandate of section 125 (1) Cr.P.C. major children are not entitled to get maintenance. Therefore, this issue is required to be specifically decided by the learned Family Court with respect to each and every children. But, admittedly, that has not been done in the present case. The quantum of maintenance is also required to Patna High Court CR. REV. No.1310 of 2009 (4) dt.11-12-2012 be re-fixed by taking into consideration the income of the husband (petitioner) from all sources, but that is also missing from the impugned order. For the reasons recorded above, this Court is of the opinion that the matter requires reconsideration by the learned Family Court. Findings of facts with respect to all the issues raised on behalf of the parties are required to be conclusively decided by the learned Family Court by looking into the evidence/materials produce by the respective parties. In the result, the impugned order dated 17th July, 2009 passed in Miscellaneous (Maintenance) Case No. 17 of 2009 by the learned Principal Judge, Family Court, Madhepura is hereby set aside and the matter is remitted back to the learned Family Court for fresh decision in accordance with law. However, this order is made subject to payment of Rs. 40,000/- to the opposite party no. 2 by the petitioner within a maximum period of three months from today either in lump or in instalments as fixed by the Family Court. This amount shall be treated as interim maintenance for the period from the date of the order till December 2012. From January, 2013 onwards till the matter is finally decided afresh by the learned Family Court, the petitioner shall be obliged to keep on paying to the opposite party no. 2 the interim maintenance at Patna High Court CR. REV. No.1310 of 2009 (4) dt.11-12-2012 the rate of Rs. 1500/- per month on month to month basis. On failure of the petitioner to pay the aforesaid amount of Rs. 40, 000/- within the time prescribed by this Court, and on failure to keep on paying the interim maintenance at the rate of Rs. 1500/- per month to the opposite party no. 2 with effect from January, 2013 till final disposal of the maintenance case, the learned Family Court shall be at liberty to take all possible coercive measures against the petitioner for recovery of the said amount from him. Since the matter has already been delayed, the learned Family Court shall make all endeavours to decide the matter afresh within the maximum period of six months from the date of receipt/production of a copy of this order. However, before doing that reasonable opportunity of hearing must be given to the petitioner as also the opposite party no. 2 and all other concerned persons. If any prayer is made on behalf of the either party for producing some more witnesses/materials in support of their respective cases, then they shall be permitted to do so within a reasonable time fixed by the learned Family Court. The application stands finally disposed of with the observations and directions made above. Let the records of Miscellaneous (Maintenance) No. 17 of 2009 received in compliance of the order dated 22.9.2011 Patna High Court CR. REV. No.1310 of 2009 (4) dt.11-12-2012 passed by a Bench of this Court, be transmitted to the learned court below forthwith. RPS/- (Birendra Prasad Verma, J)