IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1181 of 2006 SHARWAN KUMAR @ SARWAN KUMAR Versus SMT.PREM DEVI @ PREMA DEVI ----------- 6 26.09.2008 Heard counsel for the petitioner and counsel for the opposite party. At the outset, Mr. Pushkar Narayan Shahi, learned counsel appearing on behalf of the petitioner informs this Court that the petitioner in compliance of the earlier order of this Court dated 5.9.2008 has not appeared and in fact he has been given no instruction by him ever since he left the Court premises on 5.9.2008 itself. The wife-opposite party is present and has stated that immediately after leaving the Court premises, the petitioner did not accompany her nor did he make any effort to live together with her on or after 5.9.2008. Under such circumstances this Court must record that the petitioner had an attempt to mislead this court by creating an impressions through his counsel in course of his oral submissions on an earlier occasion, as has been noted in the order of this Court dated 26.8.2008 had taken the following stand- “At this stage, Mr. Pushkar Narain Sahi, Counsel appearing on behalf of the petitioner renews his offer as has already been given in paragraph no.7 to - 2 - its affidavit that the petitioner is ready to keep the opposite party as his wife in a dignified manner and also extend all sort of protection and patronage to his children. Considering the facts and circumstances of this case, this Court would direct both the petitioner and the opposite party to appear before this Court on 5th of September, 2008 at 4.15 Pm in Chambers.” As a matter of fact this Court had literally believed the following words of the petitioner as specifically stated by him in ground no. IV in this Civil Revision applications : - “For that the court below ought to have also taken into consideration the consistent case and stand of the petitioner that he is ready and willing to keep the opposite party and the children. Infact, when on the next day i.e. 5th of September, 2008, the petitioner had appeared and had given certain assurances in continuation to his aforesaid quoted statement before this Court in the civil revision application, this Court had also recorded the same which now becomes relevant and is quoted hereinbelow:- “Reference may be taken to the earlier orders of this Court dated 12.8.2008 and 26.8.2008 respectively. Pursuant thereto, both the petitioner and his wife, the opposite party have appeared in person along with their Counsel. Mr. Pushkar Narain Shahi, - 3 - learned Counsel appearing on behalf of the petitioner on the earlier occasions was correct in his analysis that there was a chance of settlement if the Court intervened. Today, after a hectic effort of almost forty-five minutes, this much has emerged, that the husband and the wife who were earlier staying separately and on account of such separation, the impugned order came to be passed by way of monthly maintenance, have now agreed to make a fresh attempt to restore their old conjugal life relationship. In view of the statement that has been given by the husband, wife and their eldest son, this Court is of the view that four adult members can still co-exist together under one roof. The parties i.e. the husband and wife have agreed that henceforth the husband will stay with the wife in the rented house in which the wife along with her two sons are living. It has been further agreed that the husband, petitioner who has taken voluntary retirement from service of Indian Railway, will discharge his obligation both as a father and a husband towards his wife and two sons, who are still dependent on their parents. The opposite party, wife, who is also ready to forgive and forget her past experience has also come out with a proposal that she has a piece of land on which if a separate house is constructed, there would be an outright chance for their living together without any disturbance and uncalled for interference from the other family members either of the side of the husband or from her own side. As a matter of fact, during their statement before this court, both of them have more or less expressed - 4 - similarly reservations arising out of some frustrating experience shared by them primarily on account of crude behavior of the family members of both the sides and therefore, it was suggested that the family of four i.e. the husband, wife and two sons should stay separately for some time. The construction of the house on the plot owned by the wife from the amount that has been received by the husband by way of one time settlement of his voluntary retirement as suggested by both the petitioner husband and the wife opposite party is only sought to be achieved with this end insight. All these oral statements, however need to be reduced in writing in the form of a compromise petition duly affidavited by both husband and wife. This Court, however is of the opinion that before such compromise takes effect, it would be necessary for the husband petitioner to prove his bonafide by depositing a sum of Rs. one lac in fixed deposit either with a nationalized bank or any post- office in the joint name (in the name of the petitioner and his wife) with a clear instruction and undertaking to the said bank/post-office that it will be jointly operated and will not be withdrawn under the single signature of either of them. After making such fixed deposit as explained, the compromise petition may be filed enclosing a photocopy of such certificate of fixed deposit. Pending filing of such a compromise petition upon depositing of a sum of rupees one lac as indicated above, the husband and wife must start living together from today itself and thereafter, file an affidavit to this effect along with compromise - 5 - petition within a period of two weeks from today so that further order can be passed by this court on the basis of proposed compromise petition. List this case on 26th of September, 2008 on which date, both the husband and wife again shall remain personally present at 4.15 in Chambers.” Now when the counsel for the petitioner has himself conceded that the petitioner is not prepared to keep his wife and children with him, it becomes clear that a wholly false and irresponsible statement was made by him (petitioner) in the civil revision application only for the purposes of assailing the impugned order. In the background of the aforementioned facts, this Court is constrained to hold that the petitioner had made an attempt to mislead this Court and the civil revision application questioning the impugned order as with regard to the payment of monthly maintenance of his wife and children is fit to be dismissed on this ground alone. This Court however, has also heard Mr. Shahi, counsel for the petitioner on merit who has highlighted only two aspects while assailing the impugned order. His first submission is that the Court below has committed an apparent error in not considering the income of the wife-opposite party while fixing the amount of maintenance of Rs. 5,000/- per month. In the opinion of this Court, such submissions are wholly misconceived. - 6 - Not only the Court below has gone into the issue of income of the wife but even before this Court in presence of the petitioner the wife had shown her document to establish that she was not employed in any service rather she was occasionally engaged in the Home-guards and in token of services rendered, she was paid some remuneration on daily wages. It was also explained to this Court by the wife-opposite party that such engagement some time in a month was for a week but there were also several months in which such engagement was not available to her. Nothing was brought on record by the counsel for the petitioner to contradict this position. That being so, this Court must hold that the wife-opposite party has no independent source of her regular income from which she can maintain herself as also the dependent children. The second and the last submission taken by Mr. Sahi is with regard to the shrunken resources of income for the petitioner on account of his retirement from service. Mr. Shahi submits that the petitioner is now no longer in service and therefore, is not in a position to pay a sum of Rs. 5,000/- per month as has been directed by the Court below in the impugned order. This submission is also fit to be rejected for the reasons namely the petitioner, when he had appeared in person before this - 7 - Court, had himself admitted that at the time of his seeking voluntary retirement, he was paid certain amount in the form of provident fund, gratuity, leave encashment and salary pay under the voluntary retirement scheme prevailing in the Indian Railway. He had also informed this Court that his salary from retrospective date would become revisable in terms of the implementation of the revised pay scale with effect from 1.1.2006. That being so, when the petitioner is regularly receiving his monthly pension and has also received consolidated lump sum payment by way of his retirement benefit, it cannot be said that the petitioner cannot pay a sum of Rs. 5,000/- per month as directed by the Court below in the impugned order. No other submissions have been made by the learned counsel for the petitioner as against the impugned order. That being so, it must be held that the impugned order which sets out the detailed reasons for fixing an amount of Rs. 5,000/- per month by way of monthly maintenance, is not vitiated by any jurisdictional error. A sum of Rs. 5,000/- per month for maintaining three persons, wife and two children, cannot even otherwise be said to be either excessive or unreasonable especially when the reasonings given by the Court below for directing payment of Rs. 5,000/- in the impugned - 8 - order is not vitiated by any material irregularity and/or is perverse. This Court while exercising its power under Section 19(4) of the Family Court Act, in a proceeding arising out of Section 125 of the Cr.P.C., akin to the powers under Section 115 of the C.P.C., cannot be expected to go into the correctness of the findings of facts as recorded in the impugned order. In that view of the matter, this civil revision application is fit to be dismissed even on merits and it is ordered accordingly. The petitioner on his own showing has not paid the entire amount as directed in the impugned order of the Court below and therefore, this Court would direct the employer of the petitioner namely the authorities of the Indian Railway in general and the Divisional Personnel Officer, Eastern Railway, Asansol, West Bengal in particular to realize the entire amount of arrears at the rate of Rs. 5,000/- w.e.f. 21.6.2006. The competent authorities therefore, would be under compulsion to make recovery of the admissible amount payable to the wife-opposite party in terms of the order of the Court below dated 21.6.2006 in Maintenance Case No. 100(M) of 1997 and any arrear of amount barring pension will be paid to the petitioner only after making recovery of the amount payable to the wife-opposite party under the impugned order. It is further directed that till such - 9 - realization of arrear and current amount of maintenance is made, the petitioner will not be paid beyond 50% of his monthly pension and the remaining entire amount payable to the petitioner will be first utilized for liquidating the dues of the wife-opposite party in terms of the impugned order. Disobedience of any part of this order by the authorities of the Indian Railway would amount to contempt of this Court. With the aforementioned observations and directions, this application is hereby dismissed. Bibhash (Mihir Kumar Jha, J.)