IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1973 of 2007 NARESH YADAV Versus BILSI DEVI ----------- 2 2/9/2008 Heard counsel for the petitioner and counsel for the opposite party. Mr. Nirankar, counsel appearing on behalf of the petitioner has submitted that the amount of Rs. 2,000/- fixed by the impugned order towards maintenance under section 125 of the Cr.P.C. for the wife and minor son is wholly excessive taking into account that the petitioner has also parted with 3.25 acres of land only for maintenance of his wife and the minor child. In this context he refers to the admission of the wife in the first information report being Sono P.S. Case No. 113 of 2002 dated 28.10.2002 to submit that such transfer of land was by way of family settlement because the petitioner had married another lady, namely, Monika @ Jana in the year 1993. Counsel appearing on behalf of the opposite party, wife on the other hand would contend that the situation which was created after the family settlement, in 2 fact, had compelled her ( wife, opposite party) to file this application for claiming maintenance. In this regard counsel for the opposite party submits that the petitioner did not transfer the land in question by any registered deed and had only given permissive possession to the opposite party, and brother of the petitioner had driven her (wife) away from the land by forcibly dispossessing her leaving her with absolutely no means to fend herself and the minor son. Having perused the impugned order and also taken into account the aforementioned submission, this Court is of the view that the petitioner is working as Electrician in a Colliery and has therefore sufficient means of regular monthly income and as such grant of Rs. 2,000/- per month towards maintenance for his wife and the child cannot be said to be either excessive or illegal in any manner. Coming to the story of making permanent provision by way of giving lands for subsistence of the wife-opposite party 3 and the minor son, this Court would find that by making only family settlement without transferring the same by a registered document in the name of wife- opposite party, she could not have exercised and asserted her right much less could remained its possession. The situation that was allegedly created by brother of the petitioner could have been infact easily created by any one specially when the wife is now left above to find for herself and her minor son. If the petitioner in fact was so sanguine of providing permanent means and if the land value of 3.25 acres is worth yielding an income of Rs. 2,000/- per month, the petitioner can still show his bonafide, by executing a registered deed conveying the land in question to the opposite party and once he does so, he will be at liberty to approach the court below under section 127 of the Cr.P.C. seeking modification/recall of the order granting maintenance. The court below will then examine all aspect of the matter afresh and if it is found that the compromise is bonafide and the 4 value of the land measuring 3.25 acres will fetch her (wife) at least amount which was ensured by the impugned order, the court below will pass an appropriate order in terms of section 127 of the Cr.P.C., which however would be given only an effect from a prospective date as fixed by the Court below in its order under Section-127 Cr.P.C. At this stage, counsel for the wife-opposite party submits that not a single paisa has been given by the petitioner till date to the wife. Mr. Nirankar, counsel appearing on behalf of the petitioner has, however, submitted that such payment if not already made within a period of one month from the date of receipt/production of a copy of this order. Accordingly, this Court would also direct the petitioner to pay arrears of the amount within the aforesaid period of one month from the date of receipt/production of a copy of this order in the court below. The current amount of maintenance must however be paid by the 5 petitioner on month to month basis as directed by the Court below in the impugned order. With the above observation/ direction this application is disposed of. ( Mihir Kumar Jha, J. ) Abhay Kumar