S.K.Ayaz @ Ayaz Alam v. Sabnam Praveen

of maintenance on two folds; firstly that quantum of maintenance fixed by the learned Family Court @ Rs. 4000/- per month is excessive and is required to be reduced suitably, and secondly while fixing the quantum of maintenance by the impugned order, Patna High Court CR. REV. No.1553 of 2009 (5) dt.14-12-2012 the learned Family Court has not assessed the income of the petitioner. According to the learned counsel, for deciding the quantum of maintenance the income of the husband is relevant factor and that is required to be ascertained by the Family Court on the basis of materials produced by the parties. Learned counsel for the opposite party has opposed the prayer and has supported the impugned order. He contends that despite opportunity given to the petitioner, he neither filed any show cause nor he led any evidence in support of his case and, therefore, learned Family Court had no option, but to accept the assertion and evidence of the opposite party. According to him, taking into consideration the income of the petitioner the quantum of maintenance fixed by the learned Family Court cannot be said to be excessive. After having heard the parties, this Court finds that the claim of maintenance made on behalf of the opposite party for herself and her minor son has been allowed and the petitioner has been directed to pay them maintenance @ Rs. 4000/- per month, but the learned Family Court has not recorded his finding about the income of the petitioner. This Court is of the opinion that the amount of maintenance for the wife and the minor child has to be proportionate to the income of the husband; therefore, income of the husband becomes a very relevant factor. This Court also finds that the petitioner could not lead evidence in support of his case. Hence, interest of justice demands that he should be given an opportunity to produce his evidence/ materials in support of his case. For the reasons recorded above, this Court is of the considered opinion that entire matter requires reconsideration by Patna High Court CR. REV. No.1553 of 2009 (5) dt.14-12-2012 the learned Family Court. In the result, the impugned order dated 2nd July 2009 passed in Maintenance Case No.244 of 2008 by the learned Principal Judge, Family Court, East Champaran, Motihari is hereby set aside and the matter is remitted back for fresh decision in accordance with law. The petitioner and the opposite party are directed to appear with a certified copy of the present order on 21st January 2013 before the learned Principal Judge, Family Court, East Champaran, Motihari, whereafter a firm date shall be fixed and the matter shall proceed further. Learned Family Court shall make all endeavours to pass a fresh order in accordance with law within a maximum period of six months from the date of their appearance on 21st January 2013, but before doing that he shall be obliged to give reasonable opportunity to the petitioner as also to the opposite party for producing their evidence/ materials in support of their respective cases. In case, despite opportunity given, either side fails to produce his or her evidence in support of their respective cases, then the learned Family Court shall be at liberty to pass a fresh order on the basis of the materials available on record. It is not in dispute that the petitioner has been paying the amount of maintenance to the opposite party, excepting for few months, as per the impugned order. Therefore, the petitioner shall keep on paying the aforesaid amount of Rs. 4000/- per month to the Opposite Party by way of interim maintenance on month to month basis till the matte is finally disposed of afresh by the learned Family Court. Arrears of maintenance as per the impugned order, shall be permitted to be paid by the petitioner to the opposite party within a maximum period of three months from Patna High Court CR. REV. No.1553 of 2009 (5) dt.14-12-2012 today. It is clarified that while passing the fresh order, the learned Family Court shall not be influenced or prejudiced by the present order by which the petitioner has been directed to pay interim maintenance @ Rs. 4000/- per month. The quantum of maintenance shall be decided afresh strictly on the basis of the materials produced by the parties. Both the parties shall be at liberty to raise all the other pleas, which are available to them under law. The application stands finally disposed of with the observations and directions made above. (Birendra Prasad Verma, J) BTiwary/-