IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.548 of 2007 MD. ASLAM KHAN Versus SAHRUN KHATOON & ORS. ----------- 2. 19.8.2008 Heard counsel for the petitioner. Few cases including the present are eye opener as to how the courts can be used as a tool only by a shrewd litigant who has got either sufficient time or money or both for harassing his adversaries. Here is such a classic case in which the wife, the opposite party no. 1 has been running with a begging bowl claiming maintenance since last six years and the husband-petitioner has the audacity to refuse the same on one pretext or the other. It is not in doubt that the petitioner was the person who filed Matrimonial case no. 8/2002 on 2.5.2002 seeking dissolution of marriage with the wife-opposite party no. 1. It may be noted that out of holy wedlock, the couple i.e., the petitioner and O.P., there are also four children. Consequently the opposite party being neglected and humiliated had initially filed a criminal case on 18.7.2002 alleging 2 cruelty against the petitioner and immediately thereafter she had also filed a maintenance case under Section 125 Cr.P.C. That case has lingered for good five years and ultimately the order has been passed by the Court below on 15.1.2007 awarding maintenance of a sum of Rs. 2000/- in all for the wife and four minor children. The order of the court below, to say at least, is a genuine effort narrating the entire sufferings of the wife-opposite party and her four children in the hands of the petitioner. It also contains the details of a total non-cooperative attitude on the part of the petitioner. It further records that the petitioner was found to be indulgent in producing and leading false evidence. It further records that the petitioner is one of the persons who by dint of his being influential and rich person wanted to subjugate the process of law. Counsel for the petitioner while assailing the order was initially urged that the petitioner was not allowed to be examined after he had led his evidence by 3 producing his three witnesses. In support of this fact the petitioner has produced before this court a certified copy of the application filed by him on 3.1.2007 where the prayer was made that the petitioner should be given “sufficient time” for his own appearance in the court on the ground that he under medical advice was undergoing bed rest. On such an application the court below had passed the following order which needs to be quoted : “It appears that the opposite party is in habit of filing time petition with an intention to prolong the matter. the opposite party is not paying any heed to the court’s order. Accordingly, this petition is rejected. The opposite party’s evidence is closed. Heard the applicant and her daughters. Put up for orders.” The aforesaid order really depicts the manner in which the petitioner has conducted himself in the court below. Even today when being asked as to what was the gap and last date of examination of witness of the petitioner, namely, Jahir Khan, counsel for the petitioner is not in a position to disclose such date. It is, therefore, clear that a maintenance case was 4 successfully lingered by the petitioner for a period of five years and therefore, today he cannot be heard to say that he was not given proper opportunity and that his evidence was not recorded or that refusal of time on 3rd January 2007 was without any justifiable reason. The next submission on the part of the petitioner is that when in the police case filed by the wife in course of investigation the police had found her accusations against the petitioner to be false, the court below ought to have inferred that the opposite party was not entitled for grant of maintenance. This Court fails to understand as to how a finding recorded by a police in course of investigation will materially affect the fate of the maintenance case which has to be decided by the Court on the basis of materials on record, namely, the evidence on record. The notes of investigation of the police can have hardly any effect on the issue of maintenance under Section 125 Cr.P.C. In that view of the matter, this 5 argument of the petitioner also must fail. Counsel for the petitioner then contended that the opposite party is a rustic illiterate lady and in fact does not know even the contents of her application as was admitted by her in cross-examination. The petitioner at least should not make premium of this illiteracy on the part of his wife, especially when it is realized that he had four issues from this wife and he had likewise solemnized three other marriages in his life time. Finally the petitioner has also taken a plea that there was some land in which it was agreed that the petitioner would part with 3 bighas of land for permanent maintenance of the opposite party. This plea, however, has not been raised nor has in any way impressed upon the court below. In that view of the matter, a plea which was never raised or sought to be raised cannot be now allowed to be taken up for the first time in course of hearing of this civil revision application. The petitioner has also made a 6 grievance that the court below has committed an apparent error by asking him to pay the amount with effect from 28.7.2004 the date on which the petitioners had appeared in the maintenance case. Accordingly to counsel for the petitioner such direction for payment ought to have been only from the date of order i.e. 15.1.2007. In the considered opinion of this Court, the court below infact has committed an error by giving this date of 28.7.2004 which is irrelevant in view of the provisions made under Section 125(2) Cr.P.C. Infact it ought to have been from the date of filing her application under Section 125, some time in August 2002. As a matter of fact the conclusive findings recorded by the Court below against the petitioner of not only torturing and neglecting his wife and child much before 2002, but his spirited effort in causing abnormal delay in the disposal of maintenance case itself were/are sufficient materials for allowing maintenance from the date of filing of the application by the wife under Section 125 Cr.P.C. Section 125 7 Cr.P.C. also envisages payment of such maintenance from the date of filing of the application. In that view of the matter, the order dated 15.1.2007 is modified and the petitioner is directed to pay the said amount from the first date of filing of the application u/s 125 Cr.P.C. by the opposite party. With the aforementioned modification in the impugned order, this application is dismissed with an exemplary cost of Rs. 10,000/- to be realized from the petitioner alongwith the said amount within a period of three months from the date of receipt/production of a copy of this order. In the event the entire arrear and current amount is not paid by the petitioner the court below will take coercive measures. (Mihir Kumar Jha,J.) Surendra/