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MUNNA KURAISHI Vs. STATE OF BIHAR & ANR.

Judgements favoring men

 
Court:PATNA HIGH COURT

Bench: JUSTICE Birendra Prasad Verma

MUNNA KURAISHI Vs. STATE OF BIHAR & ANR. On 31 July 2012

Law Point:
Financial condition and income of petitioner also required to be properly assessed.

 

 

JUDGEMENT

 

1. Heard learned Counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor appearing on behalf of the State and learned Counsel appearing on behalf of the opposite party No. 2, who has chosen to appear suo motu.

2. The petitioner, being aggrieved by the order dated 22.6.2010 passed in Misc. Case No. 16 of 2007 by the learned Principal Judge, Family Court, Gopalganj, allowing the claim of maintenance of the opposite party No. 2 for herself, as also for her three minor children, born out of the wedlock of the petitioner and opposite party No. 2 has preferred the present revision application under Section 19(4) of the Family Courts Act, 1984 (for short ‘the Act’) assailing the correctness, legality and propriety of the impugned order of maintenance.

3. Learned Counsel appearing on behalf of the petitioner submits that there is no dispute about the relationship between the petitioner and the opposite party No. 2 and they are legally wedded husband and wife respectively. It is also submitted by learned Counsel for the petitioner that in compliance of the impugned order dated 22.6.2010, maintenance amount of Rs. 2,000 per month is being paid to the opposite party No. 2. However, the impugned order is challenged by the petitioner primarily on two grounds. Firstly, the petitioner being the husband is prepared to keep and maintain the opposite party No. 2 as his legally wedded wife, but without there being any sufficient cause she is refusing to live with him and, therefore according to the learned Counsel, there has been infraction of Section 125(4), Cr.P.C. Secondly, it is urged that the claim of maintenance in favour of three minor children has also been allowed but they were not the claimants before the learned Family Court. According to the learned Counsel, the issues were raised on behalf of the petitioner before the learned Principal Judge, Family Court, Gopalganj, but the issues have neither been considered properly nor discussed, yet the claim of maintenance of the opposite party No. 2 has been allowed by the impugned final order. Therefore, according to the learned Counsel, the matter requires reconsideration.

4. Learned Counsel appearing on behalf of the opposite party No. 2 has opposed the prayer and has supported the impugned order. According to him, the quantum of maintenance at the rate of Rs. 2,000 per month has not been fixed only for the opposite party No. 2, the wife of the petitioner, rather, a meagre amount of maintenance at the rate of Rs. 500 per month has been allowed in favour of the wife, i.e.., the opposite party No. 2 and three minor children, who are admittedly living with their mother. In the submission of learned Counsel for the opposite party No. 2, the quantum of maintenance is required to be enhanced. It is next contended that a case under Section 498A of the Indian Penal Code is pending between the parties and for that reason the opposite party No. 2 is not living with her husband.

5. After having heard learned Counsel appearing on behalf of the parties and on consideration of the materials available on the record, this Court finds that the issues raised on behalf of the parties have not been adequately considered and the matter has not been properly decided by the learned Principal Judge, Family Court, Gopalganj.

6. Under the mandate of Section 9 of the Act, a Family Court is obliged to make an endeavour to assist and persuade the parties for arriving at a settlement in respect of the subject-matter of suit or proceeding. The family Court is required to find out as to whether in the suit or proceeding there is any reasonable possibility of settlement between the parties and only on failure to arrive at a settlement between the parties, the matter is required to be proceeded further and evidence of the parties is required to be recorded for deciding the issues raised by the parties.

7. On perusal of the impugned order, this Court does not find that the mandate of Section 9 of the Act has been properly followed by the learned Principal Judge, Family Court, Gopalganj. This Court finds that the petitioner had taken a plea that he was prepared to keep and maintain his wife with all dignity, safely and securily, yet learned Family Court has not recorded any findings of facts as to what was the sufficient cause for the wife for not living with her husband along with three minor children. This Court further finds that if the claim of maintenance on behalf of the minor children was to be allowed, then minor children were also required to be impleaded as parties and they could have been allowed to appear through their guardian or natural mother i.e.. the opposite party No. 2, but that has also not been done in the present case. It is true that the quantum of maintenance fixed for the wife and three children at the rate of Rs. 500 per month is very meagre and that may be required to be enhanced, depending upon the financial condition and income of the petitioner. The financial condition and income of the petitioner was also required to be properly assessed by the learned Principal Judge, Family Court on the basis of the materials produced by the parties.

8. For the reasons recorded above, and in view of non-compliance of the mandatory provision of Cr.P.C. as also of the Act, the impugned order dated 22.6.2010 is hereby set aside and the matter is remitted to the learned Principal Judge, Family Court, Gopalganj, for rehearing and re-deciding the same afresh on the basis of the materials/evidence produced by the parties.

9. Learned Counsel appearing on behalf of the petitioner and learned Counsel appearing on behalf of the opposite party No. 2 undertake that the petitioner and the opposite party No. 2 shall appear before the learned Principal Judge, Family Court, Gopalganj with, a certified copy of the present order on 27th August, 2012, whereafter a firm date shall be fixed by the learned Principal Judge, Family Court, Gopalganj for proceeding in the matter afresh. Both parties shall be given reasonable opportunity to produce their materials/witnesses in support of their respective cases. The petitioner shall be given a maximum period of two months for producing his witnesses/materials in support of his case. The opposite party No. 2 shall also be given a maximum period of two months for producing her materials/witnesses in support of her case for maintenance. If claim of maintenance on behalf of the minor children is made, then a proper petition should be filed on behalf of the minor children also and if such a petition is filed, then they shall be impleaded as party. They should also be given reasonable opportunity for producing their materials/witnesses in support of their claim for maintenance. The learned Principal Judge, Family Court, Gopalganj, shall make all endeavour to conclude the proceeding on or before 31st January, 2013.

10. In the meantime, till the matter is decided finally, the petitioner shall keep on paying Rs. 1,000 per month to the opposite party No. 2 by way of interim maintenance. Non-payment of amount of interim maintenance shall be viewed seriously and learned Principal Judge, Family Court, Gopalganj, shall be at liberty to recover the amount of interim maintenance from the petitioner by taking all possible coercive measures.

11. With the aforesaid observations and directions, the application stands finally allowed. The parties are left to bear their own costs.

Petition allowed.

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