Anup Narain Prasad Sinha v. Smt. Budhani Devi

Order

Mr. R.K. Ranjan, Adv. : : Mrs. Sharda Kumari, A.P.P. Mr. Subhash Pandey, Adv.

22. 02-09-2013 Petitioner/ husband being aggrieved by and dissatisfied with the order dated 05.03.2010 passed by Principal Judge, Family Court, Nalanda at Biharsarif in Case No.39(M) of 2004 whereby and wheeunder Rs.1500/- per month has been awarded in lieu of maintenance to the wife and further directing the order to be operative from the date of the order preferred instant revision.

2. It has been submitted on behalf of petitioner that marriage is admitted one. It is also admitted that parties are on

strain relationship since beginning. In the aforesaid background, it has been submitted that his wife Smt. Budhani Devi was living separately under mutual consent since 25 years after getting 1 Bigha 10 Kattha of land in lieu of maintenance. In the aforesaid

2. background, it has been submitted that when the parties are living separately on their own choice then in terms of Section 125(4) of the Cr.P.C., the prayer is not maintainable. It has also been submitted that when their happens to be conclusive evidence on the record that parties are living separately since 25 years then in that event, a petition under Section 125 of the Cr.P.C. is not at all maintainable. To buttress his submission, also relied upon (1996) 1 SCC 39. It has further been submitted that the Principal Judge, Family Court had bypassed the mandatory provision of law in terms of Section 9 of the Family Court Act whereunder the first step which was to be taken up by the Principal Judge, Family Court for reconciliation which never been taken up by the learned court below. In support of his contention, the learned counsel further relied upon 2013(1) PLJR SC 321. It has further been submitted that all the lands have been sold away by the wife at the instance of her son and so she has ample money for the present to maintain herself. Side by side it has also been submitted that for her own fault petitioner cannot be punished. It has further been submitted that husband is ready to maintain his wife in case she wishes to reside with him.

3. On the other hand, it has been submitted on behalf of Opposite Party / wife that whatever assertion has been made on

3. behalf of husband happens to be false, frivolous and fictitious. It has also been submitted that wife never intended to sway away from her marital life, rather she is leading secluded life as being neglected by the husband. It has further been submitted that husband happens to be so callous and jealous towards her and that happens to be reason behind getting the land sold away by their son, after impressing upon him and then a Title Suit has been brought up by him for cancellation of the sale deed. On account of such illegal activity of husband now the question remains with regard to her survival. It has further been submitted that only to defeat the execution of order, now the plea has been raised that he is ready to keep his wife.

4. So far application of Section 125 Cr.P.C. is concerned, it is not at all guided by the law of limitation be cause of the fact that neither under Criminal Procedure Code nor under Limitation Act it is found abridged. There happens to be no barricading of the prayer under Section 125 of the Cr.P.C. on the question of limitation that has also been held in Smt. Mithu Devi vs. Siya Choudhary reported in 1974 BLJR 726 at para-5 : “The applicant under Section 488 of the Code has simply to prove that the person concerned, having sufficient means, neglects or refuses to maintain his wife or child. No period of limitation has been prescribed either under Section 488 or in any other provision of the Code for filing an application maintenance under Section 488 of the Code is the last resort for the wife and the children, who are neglected or not maintained by their husband and father. In my opinion, the learned Magistrate unnecessarily laid for maintenance. Generally, the application

4. much stress on the delay in filing the application for maintenance”

5. In (1996) 1 SCC 39 at para-6, so relied upon by the petitioner it has been held “the concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. In other words, during the subsistence of the marriage, if the parties agree to live separately by mutual consent, no party is entitled to lay and claim for maintenance from the other party”.

6. The aforesaid finding is not going to suggest that on account of long interval a petition under Section 125 of the Cr.P.C. will not be entertainable rather suggest that when there happens to be mutual consent for living separately, then in that event no petition under 125 of the Cr.P.C. will entertainable. The Section is itself bridle with such condition and there cannot be any sort of controversy over the same. This fact has to be ascertained from the evidence itself. PW-1 is Budhni Devi herself. In her examination-in-chief she had supported her case as well as also the source of means of husband. During cross- examination at para-10 she had stated that she along with her son had not sold the 1 Bigha 10 Kattha of land lying at village- Chotki Ant . She has further stated that she is residing at village- Ant since after sale of the land. In para-11 she had denied the

5. suggestion that the aforesaid land was given to her in lieu of maintenance by Panchayati which she had sold. In para-12 she had disclosed that her husband had filed Title Suit which is pending. She had further stated that he had sold the land and he himself had filed the suit. At the other hand OPW-1 is husband himself. In his examination-in-chief he had disclosed that he had purchased from his earning the cultivable land as well as homestead land at village-Mohanpur. He had 1 Bigha 10 Kattha of land at village-Chotki Ant and 6 decimal of homestead land. On account of strain relationship amongst both the parties a panchayati was held and during course thereof, both the parties have consented to live apart and since 29 years both the parties are living separately. The land lying at village-Chotki Ant was given to the wife in lieu of maintenance which she accepted and getting herself maintained from its usufruct. His son and wife conjointly sold away land and at the instance of his son, this case has been instituted. During cross-examination he had admitted that he retired as High School Teacher and is getting pension. In para-12 he had narrated that he has scribed in the affidavit that both the parties are living separately for the last 35 years at the instance of father, maternal uncle, etc. In para-13 he had said that he resides alone at village-Mohanpur. He had admitted that his

6. wife is an old.

7. After scrutinizing the evidence of both the parties, it is evident that husband had not suggested his wife during course of cross-examination that she is living apart from him for the last 25 or 29 years on her own volition. Unfortunately, the husband had exhibited plaint of Title Suit No.166 of 2004 which has been instituted against Smt. Sumitra Devi, Sharwan Kumar and Surendra Prasad Yadav, son of petitioner. From perusal of the averments of the plaint, it is evident that petitioner had not divulged the fact that the aforesaid land was ever given to his wife in lieu of maintenance rather he has asserted his physical possession over the land under dispute lying at village-Chotki Ant which has been sold away by his son Surendra Prasad Yadav. The aforesaid Ext.-C falsify not only plea of husband rather demolished the claim of the husband. As such claim of husband that wife is living separately as per mutual consent and got land in lieu of maintenance is found completely shattered. Now coming to application of Section 9 of the Family Court Act. It is evident from the lower court record that the petition was filed before the learned Magistrate where the matter was proceeded with and during midst of trial, after constitution of family court, the same was transferred and so in the aforesaid

7. background the non-compliance of Section 9 of the Act is not going to frustrate the order passed by the learned lower court. Citation referred by the learned counsel for the petitioner reported in 2013(1) PLJR SC 321 also did not suggest that non- compliance thereof will slink the finding although the dispute relating to the aforesaid case was under Hindu Marriage Act and not under Section 125 of the Cr.P.C. Neither there happens to be pleading, nor suggestion during course of trial at the end of petitioner to keep his wife. However, if such offer is made in terms of Section 127(1) of the Cr.P.C. then the learned lower court, will adjudicate upon truthfulness, genuineness and conduct of the respective parties and will pass appropriate order on that score in accordance with law. After discussing and analyzing the evidence on record, it is apparent that the petition is found to be devoid of merit and is accordingly rejected. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 2nd day of Sep., 2013 PRAKASH NARAYAN/ A.F.R.