Khalil Ahmad v. The State Of Bihar

Patna High Court CR. REV. No.663 of 2009 (3) dt.12-10-2012 Principal Judge, Family Court, Siwan, allowing the claim of maintenance ex-parte made on behalf of the opposite party nos. 2 to 4, has been rejected. It appears that the opposite party nos. 2 to 4 filed a petition under section 125 Cr.P.C. claiming maintenance against the present petitioner, which gave rise to Misc. (Maintenance) Case No. 49 of 2007. In the aforesaid proceeding, the opposite party no. 2 claimed to be legally wedded wife of the petitioner, whereas opposite party nos. 3 and 4 claimed to be minor sons of the petitioner, born out of the wedlock of the petitioner and the opposite party no. 2. In that proceeding the petitioner was arrayed as opposite party. It is also not in dispute that at the relevant time the petitioner was under judicial custody in connection with a criminal case lodged by the opposite party no. 2. Learned counsel for the petitioner submits that while the petitioner was in judicial custody, the learned Principal Judge, Family Court, Siwan issued a production warrant and accordingly, the petitioner was produced in the court from jail.

However, it is contended that no notice was issued to the petitioner in the aforesaid maintenance case. The petitioner, being an illiterate person, could not know that in connection of what case he was produced before the learned Principal Judge, Family Court, Siwan. Patna High Court CR. REV. No.663 of 2009 (3) dt.12-10-2012 It is also contended that since the petitioner was in judicial custody at the relevant time, so he could not file his show cause and could not produce his witness/materials in support of his case, resisting the prayer made on behalf of the opposite party nos. 2 to 4 for grant of maintenance terms of section 125 Cr.P.C. Consequently, the maintenance case proceeded ex-parte and by the order dated 21.11.2007 the claim of maintenance made on behalf of the opposite party nos. 2 to 4 was allowed and the petitioner was directed to pay maintenance to the opposite party no. 2 at the rate of Rs.

600/- per month and to opposite party nos. 3 and 4 at the rate of Rs. 400/- per month each. The maintenance was directed to be paid to the opposite party nos. 2 to 4 from the date of the aforesaid order dated 21.11.2007. It is further submitted that since the proceeding under section 125 Cr.P.C. had proceeded and concluded ex-parte, therefore, the petitioner filed a petition on 1.12.2008 under section 126 (2) Cr.P.C. for recall or setting aside the original order dated

21.11.2007, but that has been rejected by the impugned order dated 1.4.2009. It is the case of the petitioner that on the date of original order the opposite party nos. 3 and 4 were majors. Therefore, under the scheme of section 125 Cr.P.C. they were not entitled to get maintenance from the petitioner. It is also the case Patna High Court CR. REV. No.663 of 2009 (3) dt.12-10-2012 of the petitioner that opposite party no. 2 is leading an adulterous life and she is living with one Farid Ahmad, like wife and husband, and therefore, according to the learned counsel, she is also not entitled for maintenance. These issues, according to the learned counsel, could not be gone into by the learned Principal Judge, Family Court, Siwan, since the petitioner had no opportunity file his show cause and produce his evidence/materials in support of his case. Learned counsel appearing on behalf of the opposite party nos. 2 to 4 has supported the impugned order and has opposed the prayer made on behalf of the petitioner. It is contended that, admittedly, the petitioner was produced from judicial custody before the learned Principal Judge, Family Court, Siwan, and, therefore, he had knowledge and information about filing and pendency of the aforesaid maintenance case, yet he did not file his show cause. Learned counsel has candidly admitted that he has no instruction about the majority or otherwise of the opposite party nos. 3 and 4, who are the sons, born out of the wedlock of the petitioner and the opposite party no. 2. After having heard the parties and on consideration of the materials as also on perusal of the impugned orders dated

1.4.2009 and 21.11.2007 passed by the learned Principal Judge, Patna High Court CR. REV. No.663 of 2009 (3) dt.12-10-2012 Family Court, Siwan, this Court is of the considered opinion that the entire matters require reconsideration and a fresh decision by the learned Family Court, Siwan. The issues raised on behalf of the petitioner either regarding majority of the opposite party nos. 3 and 4 or about the adulterous relationship of the opposite party no. 2 with another person are basically the issues of facts and are required to be decided on the basis of the materials/evidence produced by the parties. Further this Court finds that these issues go to the root of the matter for consideration of the claim of maintenance under section 125 Cr.P.C. made on behalf of the opposite party nos. 2 to

For the reasons recorded above, the impugned order dated 1.4.2009 and the original impugned order dated 21.11.2007 passed in Misc. Maintenance Case No. 49 of 2007 by the learned Principal Judge, Family Court, Siwan are set aside, and the matter is remitted back to the court of learned Principal Judge, Family Court, Siwan for a fresh decision in accordance with law. Learned counsel for the petitioner and the learned counsel for the opposite party nos. 2 to 4 undertake that the petitioner and the opposite party nos. 2 to 4 shall appear on 3rd December, 2012 before the Principal Judge, Family Court, Siwan Patna High Court CR. REV. No.663 of 2009 (3) dt.12-10-2012 with a certified copy of the present order, whereafter a firm date shall be fixed for proceeding in the matter afresh. The petitioner shall be given reasonable opportunity for filing his show cause in the maintenance case filed on behalf of the opposite party nos. 2 to

4. All endeavours shall be made to dispose of the maintenance case afresh at an early date, preferably within a period of six months from the date of appearance of the both parties on 3rd December, 2012, but before doing so, both the parties shall be given reasonable opportunity to produce their materials/evidence in support of their respective cases. It is clarified that if either party fails to produce evidence/materials in support of his/her case, despite reasonable opportunity given to them, then the learned Principal Judge, Family Court, Siwan shall be at liberty to decide the matter afresh on the basis of the materials available on record. The application stands finally disposed of with the observations and directions made above. RPS/- (Birendra Prasad Verma, J)