IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1603 of 2006 SMT. MUNNI KUMARI SINHA Versus JAI PRAKASH MANDAL ----------- 6 26.2.2009 Heard counsel for the parties. Reference may be made to the earlier orders of this Court dated 16.1.2009 and 11.2.2009 respectively. Earlier an impression was created by counsel of both the parties that the matrimonial dispute of this case could be sorted out inasmuch as the wife-petitioner was willing to live with her husband- opposite party and therefore, if the husband-opposite party was ready to live with the petitioner with dignity, the whole issue could have been brought to a happy ending. Today, however, counsel for the husband-opposite party would submit that the husband-opposite party, despite being aware of the orders of this Court dated 16.1.2009 and 11.2.2009, is not prepared to appear in the case and therefore, this Court may pass an appropriate order disposing of this civil revision application on merits. The aforementioned defiant attitude of the husband-opposite party, in fact, would only go to show that he is some how evading his presence not only before this Court but also before the Family Court with a purpose. This Court infact could have also exercised its coercive power for securing the presence of the husband-opposite party by issuing warrant of arrest but then as the counsel for the opposite party assures this Court that whatever direction is given by 2 this Court would be complied, by the husband-opposite party, the more prudent course would be decide and dispose of the Civil Revision Application on merits. The impugned order passed by the Family Court dated 21.7.2006 rejecting the application of the wife-petitioner under Section 125 of the Code of Criminal Procedure (in short Cr.P.C.) cannot be sustained on a simple analogy that the Family Court was not supposed to find out the reasons for filing of a case under Section 125 of the Cr.P.C. The requirement of law is to only see as to whether the ingredients under Section 125 of the Cr.P.C. were made out or not. This Court would thus find it difficult to sustain the impugned order only on the ground that there was no opposition to the averments made by the petitioner in her application seeking maintenance. Once the facts were not controverted, the ingredients as alleged by the petitioner and her being unable to maintain herself from her own means, were itself proved. That apart, when five witnesses were examined by the petitioner, their oral depositions and documentary evidence could not have been brushed aside only on the ground that the petitioner was trying to give some legal shape to the Panchnama dated 13.10.1992. Whatever be the effort of the parties in a Panchnama, if that was not acted upon, would not leave either party without a remedy. In any event an application under Section 125 of the Cr.P.C. cannot be rejected only because there was a Panchnama dated 13.10.1992. Similarly, the reasonings of the Court below in the impugned 3 order while dismissing the maintenance case of the petitioner on the ground that in an earlier an inter-parte proceeding under Section 125 Cr.P.C., in Misc. Case No. 27/2005, such maintenance was rejected by an order dated 6.9.2005, is also wholly unsustainable in as much as the aforesaid earlier proceedings initiated by the petitioner under Section 125 Cr.P.C. was dismissed for default and not on merits. This Court has in fact looked into the order dated 6.9.2005 in Misc. Case No. 27/2005 and from its bare perusal it is found that the said proceeding was dropped only on the ground that steps for filing of requisites for service of notice against the husband-opposite party was not taken on behalf of the petitioner. As noted above, the husband-opposite party has always been running away from the Courts whether in Misc. Case No. 27/2005 or in the subsequent Misc. Case No. 99/2005. As a matter of fact, when the husband-opposite party having engaged a counsel in this case has not chosen to comply the order of his personal appearance, there would be hardly any reason for this Court to approve the reasonings of the court below in denying the payment of maintenance on the ground of dismissal of the Misc. Case No. 27/2005. The only other ground on which the court below has non- suited the wife-petitioner is delay of seven years in filing of the application for maintenance. Unfortunately, here again the court below has imposed some sort of statutory limitation even when the statute itself does not prescribe any such limitation. True it is that the marriage of the petitioner was solemnized in the year 1983 but then if 4 those facts mentioned in the application seeking maintenance giving detailed account of the repeated torture and negligence even leading to atleast two abortions, are to be taken into account, the wife- petitioner cannot be denied payment of maintenance only on the ground of alleged delay in filing of such application. The court granting maintenance can take such delay in to consideration at best for giving retrospective effect to the direction for making payment. In the present case, since the earlier proceedings was dismissed on 6.9.2005 whereafter the maintenance case was filed on 23.9.2005, the court below could have very well taken the aforesaid date of filing to be the beginning point for payment of maintenance. It has to be taken into account that there was no denial to the facts with regard to source of income of the husband-opposite party as claimed by the petitioner in her application supported by oral and documentary evidence. In such a situation, when the husband-opposite party had not controverted the assertion of the petitioner, the approach of the court below to record findings only on the basis of its own surmises and conjectures, is not appreciable to this Court. Counsel for the petitioner in fact would submit that this Court itself on the basis of materials available on record should pass an order directing payment of maintenance at least from the date of filing of her application. Counsel for the opposite party, however, would submit that this exercise should be carried out by the Family Court in seisin with 5 the records including the oral and documentary evidence led by the petitioner. In the opinion of this Court, the counsel for the husband- opposite party seems to be correct because once this Court has found the reasonings in the impugned order to be not correct, it must after setting aside the same remit the matter to the court below to consider only two questions namely:- (i) whether the ingredients for grant of maintenance under Section 125 of the Cr.P.C. were fulfilled by the petitioner in the light of her incontroverted averments in the application and/or the evidence adduced by the petitioner (ii) what would be the quantum which would be sufficient for maintenance of the wife-petitioner taking into account the income of the husband- opposite party? For doing this exercise, the Family Court is not required to look into anything else except the pleadings already on record either by way of application of the petitioner or the evidence led by her. Since the husband-opposite party had not even contested the proceedings in the court below or even before this Court he will have now no liberty to place any new material on record. That being so, this Court would set aside the impugned order and remit the matter back to the Principal Judge, Family Court, Bhagalpur who must re-hear the matter and dispose it of within a period of one month from the date of receipt/production of a copy of 6 this order. The amount of maintenance, so granted, will of course be payable from the date of application i.e. 23rd of September, 2005, the day on which Misc. Case No. 99/2005 had been instituted. With the aforementioned observations, this application is disposed of. The personal appearance of the wife-petitioner is dispensed with. Rsh (Mihir Kumar Jha, J.)