CRIMINAL MISCELLANEOUS No.35334 OF 2000 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- SHEOJI SHARAN RAUT son of Late Kanhai Raut, resident of village-Khaddha, P.S.-Nautan, District-West Champaran ……. ……Petitioner Versus 1.MUNNI DEVI D/o Late Bhola Patel, resident of Mohalla-Nuniyar, Babri Mohalla, Ward No.4, Bettiah, P.S.-Bettiah Town, Dist.-West Champaran 2. The State of Bihar ….... ……Opposite Party -------- For the Petitioner: Mr.Harish Kumar For Opp. Party No.1: Mr.Manoj Kumar For the State: Mrs. Indu Bala Pandey, Addl.P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of judgment and order dated 27.5.2000 passed by Mr. Nirmalendu Kumar Kanth Neeraj, Ist Additional Sessions Judge, Bettiah, West Champaran in Cr. Revision No..1 of 1999/10 of 1999. By the said order the learned Additional Sessions Judge has rejected the revision preferred by the petitioner against the order dated 9.12.1998 passed by Mr.A.K.Srivastava, Judicial Magistrate, Bettiah in T.R. No.679 of 1998. The learned Magistrate by order dated 9,12.1998 had allowed the prayer of opposite party no.1 for substituting the petitioner in place of his father in a case of maintenance filed under section 125 of the Code of Criminal Procedure. The petitioner has further prayed for quashing of an order dated 22.8.2000 passed by the learned 2 Magistrate in T.R. No.679 of 1998 directing the petitioner to make payment of interim maintenance allowance in view of the order dated 18.2.1997 failing which distress warrant shall be issued against him. 2. Short fact of the case is that opposite party no.1 had filed a case under section 125 of the Code of Criminal Procedure for her maintenance against father of the petitioner claiming as wife of father of the petitioner under section 125 of the Code of Criminal Procedure. Before commencement of evidence a petition dated 1.7.1996 was filed by opposite party no.1 with a prayer for directing the father of the petitioner to make payment of interim maintenance allowance. However, the said petition was rejected on 16.10.1996 vide annexure-1 to the petition. In the next month a separate petition was filed on 28.11.1996 for directing the father of the petitioner to make payment of interim allowance for maintenance of her children. By order dated 18.2.1997 the learned Magistrate, directed the father of the petitioner to make payment of Rs.150 each per month for maintenance of two children of opposite party no.1. It was directed that the said interim maintenance allowance total Rs.300/- per month was to be paid from 28.11.1996 till the disposal of the case. During the pendency of the said proceeding father of the petitioner died and, thereafter, opposite party no.1filed a petition for substituting the petitioner in place of his deceased father and it was also prayed to direct the petitioner for payment of arrear amount. The petitioner filed a show cause to the petition filed by opposite party no.1 and objected to his substitution. 3 However, the petition filed by opposite party no.1 for substituting the petitioner was allowed on 9.12.1998 vide annexure-4 to the petition. The petitioner being aggrieved with the order dated 9.12.1998 preferred a revision vide Cr. Revision No.1 of 1999/10 of 1999 and by the impugned order i.e. dated 27.5.2000 the learned Ist Additional Sessions Judge, Bettiah, West Champaran dismissed the revision petition holding that merely on the death of father of the petitioner, the order of interim maintenance does not extinguish. Learned Additional Sessions Judge further held that presence of the petitioner, while the proceedings are going on, would be necessary. After rejection of the revision petition, by an another order dated 22.8.2000 the learned Magistrate directed the petitioner to make payment of interim maintenance allowance from 18.2.1997 to the petitioner failing which distress warrant would be issued against him. 3. The petitioner being aggrieved with the judgment of the revisional court as well as subsequent order issued by the learned Magistrate, approached this court by filing the present petition. 4. On 03.09.2001, while issuing notice to opposite party no. 1, this Court directed that in the meantime further proceedings in Trial No. 679 of 1998 pending before the Magestrial Court at Bettiah shall be stayed. Subsequenlty, on 02.11.2001 the case was admitted for hearing and it was directed that the interim order passed on 03.09.2001, shall remain operative during the pendency of this application. 4 5. Shri Harish Kumar, learned counsel for the petitioner, while challenging the impugned orders, submits that the father of the petitioner, in his life time, after filing maintenance case by opposite party no. 1, had disputed that opposite party no. 1 was neither his wife nor concubine and, as such, he had prayed for rejection of the maintenance case filed by opposite party no. 1. Learned counsel for the petitioner further submits that even without recording her evidence she filed a petition for interim maintenance allowance, firstly on 16.10.1996 for herself, which was rejected by the learned Magistrate by assigning a detailed reason vide Annexure-1 to the writ petition. When opposite party no. 1 failed to get a favourable order for interim maintenance she again filed second petition within few days after rejection of his earlier petiton on a plea for maintenance of her two children and the learned Magistrate by its order dated 18.02.1997 allowed the interim maintenance and directed the father of the petitioner to make payment of maintenance at the rate of Rs. 150/- each per month in favour of two children of opposite party no. 1 as a measure of interim maintenance. During the pendency of the said case, the father of the petitioner died on 20.06.1998 and, as such, a petition was filed by the learned lawyer of the father of the petitioner stating therein that petitioner’s father died on 20.06.2008 and, hence, the proceeding be dropped. The said petition was filed on 24.06.1998 and on the same date opposite party no. 1 also filed a petition for substituting the petitioner. 6. Learned counsel for the petitioner has argued that 5 father of the petitioner died leaving behind his widow Kalawati Devi, three sons and five daughters. Learned counsel for the petitioner has further submitted that Circle Officer, Nautan, West Champaran had also given certificate showing genealogical table which has been brought as Annexure-3 to the petition to show that father of the petitioner died leaving number of legal heirs. It was submitted that after the death of the father of the petitioner, the maintenance proceeding was liable to be dropped and, as such, learned Magistrate has committed serious error by allowing the substitution petition of opposite party no. 1 and substituted the petitioner in place of his father. It was argued that in any case only the present petitioner was not liable to be substituted in place of his father. It was argued that the learned Additional Sessions Judge has passed the impugned order which is contrary to the statutory provision. Similarly, it was argued that the order dated 22.02.2000 passed by learned Magistrate, is also liable to be set aside. During the course of hearing, learned counsel for the petitioner has relied upon a judgment reported in 1953 Cri. L.J. 1267 (Ambadas Bajirao Vs. Annapurna Bai) and 1986 Cri. L.J. 1432 (Prithviraj Singh Vs. Smt. Pavanvir Kaur) it was argued that it has been held in the aforesaid cases that after the death of the husband, the case for maintenance under Section 125 of the Code of Criminal Procedure cannot be allowed to further proceed and it abates.. 7. Sri Manoj Kumar, learned counsel for opposite party no. 1 has vehemently opposed the prayer of the petitioner. It was submitted by Mr. Kumar that Supreme Court has already held 6 in A.I.R. 1983 SC 916 (Mrs. Aruna Basu Mullick vs. Mrs. Dorothea Mitra) and A.I.R. 1983 SC 1201 (Smt.Nandarani Mazumdar vs. Indian Airlines & Ors.) that in a case of alimony, even after the death of the husband, realization can be made from the assets of the deceased-husband. It was submitted by Mr. Kumar, learned counsel for opposite party no. 1, that the learned Additional Sessions Judge has rightly rejected the revision petition and, accordingly the learned Magistrate had passed a valid order on 22.08.2000 directing the petitioner to make payment of interim maintenance from 18.02.1997 to opposite party no. 1. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In this case no counter affidavit has been filed by opposite party no. 1. From the materials on record, it is evident that right from the very beginning the father of the petitioner had disputed the claim of opposite party no.1. In this case, while evidence of opposite party no. 1 had not even commenced, she had filed a petition for interim maintenance allowance which was rejected on 16.10.1996 and immediately thereafter, a separate petition was filed for passing an order of interim allowance for maintenance of her two children, and the learned magistrate by order dated 18.02.1997 allowed the same and directed the father of the petitioner to make payment of interim maintenance allowance from 28.11.1996 till the pendency of the maintenance case. It was purely an interim measure. Once the father of the petitioner died, there was no reason to proceed with the maintenance case. After the death of father of the petitioner, in 7 natural course, the proceeding had come to an end and, as such, it was not open for the learned Magistrate to pass an order for substituting only the petitioner for payment of interim maintenance allowance. Once father of the petitioner died leaving behind number of legal heirs, in the maintenance proceeding, substitution of only petitioner was not desirable. It is true that opposite party no. 1 was entitled to get allowance till the date of death of father of the petitioner but for such payment the petitioner was not required to be directed for making such payment. In such a situation, right course was to take steps for realization of dues from the assets of the petitioner’s father. The petitioner in an individual capacity was not required to be substituted, that too, for payment of dues of his father. For proceeding with a case filed under Section 125 of the Code of Criminal Procedure, a specific procedure has been prescribed under Section 126 of the Code of Criminal procedure for proceeding with the case in presence of the person against whom maintenance is claimed. At this juncture, it would be appropriate to quote sub- Section (2) of Section 126 of the Code of Criminal procedure which is as follows:- “All evidence in such proceedings shall be taken in the presence of the persons against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with , in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the persons against whom an 8 order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. 9. From the aforesaid provision, it is evident that proceeding under Section 125 of the Code of Criminal procedure is to be taken in presence of person against whom an order for maintenance is passed or when his personal attendance is dispensed with in presence of his pleader. Accordingly, the Court is of the view that as per the provisions contained in the Code immediately after the death of the father of the petitioner, the proceeding which was initiated under Section 125 of the Code of Criminal procedure had come to an end and, as such, the order for substituting the petitioner in place of his father was incorrect and illegal. So far as the case law cited by opposite party no. 1 is concerned that does not help the petitioner particularly in view of specific provision contained in Section 126 of the Code of Criminal procedure. In prithvi Raj Case,1986 Cr. L.J. (Supra) as well as in 1953 Cr. L.J. it has been correctly held that maintenance proceeding initiated under the Code of Criminal procedure comes to an end after the death of the person against whom maintenance is claimed. However, arrears 9 of maintenance allowance can be recovered from the estate of the deceased. Accordingly, the court is of the opinion that the learned court below has incorrectly allowed the substitution of the petitioner in place of his father for the purpose of paying the interim maintenance allowance in the present case. Accordingly, the petition stands allowed and the judgment dated 27th May, 2000 passed by Ist Additional Session Judge, Bettiah as well as order dated 22.08.2000 passed by learned Magistrate in T.R. No. 679 of 1998 are hereby set aside. However, liberty is granted to opposite party no. 1 for taking steps for recovery of arrears of interim maintenance allowance from 18.02.1998 up to the date of death of father of the petitioner from the estate/property of the father of the petitioner in accordance with law. 10. With the above observation and direction, the petition stands allowed. Patna High Court The 4th August, 2010 Md.S.(NAFR). ( Rakesh Kumar, J.)