IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13527 of 2011 Dheeraj Kumar Versus Smt.Chandani Devi @ Gudiya ----------- 08. 20.10.2011 Heard the learned counsel, Mr. Pankaj Prabhat on behalf of the petitioner and the learned counsel, Mr. Makardhwaj Upadhyay on behalf of the respondent. (2) This application under Article 227 of the Constitution of India has been filed by the husband- petitioner, Dheeraj Kumar for quashing the order dated 19.05.2011 passed by Principal Judge, Family Court, Patna in Matrimonial Case No.184 of 2010 whereby and whereunder the learned Court below allowed the petition of respondent-wife dated 18.11.2010 under Section 24 of the Hindu Marriage Act and directed the petitioner to pay a sum of Rs.8,000 per month as maintenance and a sum of Rs.10,000 in lump sum to the respondent as a litigation cost. (3) The learned counsel for the petitioner submitted that the petitioner was married with the respondent on 17.06.2009. The petitioner took her with him to his work of place on 30.01.2010. The wife- respondent never cooperated with the petitioner and remained adamant on each issue and every occasion. She never performed her marital obligation and used to maltreat the petitioner and his family members whenever 2 she got opportunity. Lastly on 16.02.2010, she went away to her Mayka and she never came back. Thereafter, the petitioner filed Matrimonial Suit No.184 of 2010 under Section 9 of Hindu Marriage Act, 1955. There was re- conciliation proceeding going on between the parties and the respondent filed application under Section 24 of the Hindu Marriage Act on 18.11.2010 but the same was never pressed by her till 28.01.2011. The respondent lodged F.I.R. being Kadamkuan P.S. Case No.59 of 2011 on 26.02.2011 under Section 498(A) I.P.C. and 3/4 of the Dowry Prohibition Act and because of the same, the petitioner was prevented to attend the Family Court proceeding because warrant of arrest was issued against the petitioner and in the meantime, the respondent pressed her application and the impugned order has been passed by the Court below without hearing the petitioner. The learned counsel further submitted that on 24.06.2011, the petitioner filed his objection to the application under Section 24 of the Hindu Marriage Act after obtaining anticipatory bail on 15.06.2011. (4) The learned counsel for the petitioner further submitted that the learned Court below arbitrarily fixed Rs.8,000 per month as maintenance as the petitioner has already been suspended and moreover, even if the income of the petitioner is held to be Rs.25,000 per month then also 1/3rd of the total income could not have been 3 directed to be paid. According to the learned counsel of the petitioner generally either 1/4th or 1/5th is allowed as maintenance. On these grounds, the learned counsel submitted that the impugned order be set aside and the learned Court below should be directed to pass a fresh order after hearing the parties. (5) On the other hand, the learned counsel for the respondent submitted that the respondent was ousted from the matrimonial house in connection with demand of dowry of Rs.5 lacs besides 1 kattha land in Patna town. The petitioner never tried to reconcile the matter and just to save his skin, filed the matrimonial case. The respondent has got no source of income and is unable to maintain her therefore, she filed the application under Section 24 of the Hindu Marriage Act on 18.11.2010 whereas the F.I.R. was lodged on 26.02.2011. During this period, the petitioner was appearing before the Court regularly but did not file any rejoinder to the application filed by the petitioner thereby prolonged the disposal of maintenance application. The petitioner was granted anticipatory bail on 15.06.2011 and during this period, the petitioner was never arrested and, therefore, the petitioner with a view to defeat the process of Court taking this plea that criminal case was instituted so he was prevented to appear in the Court. According to the learned counsel, if he has got any grievance against the order that he was not 4 heard prior to passing of the impugned order, he should approach the Court below by filing application to recall the order or pray for reduction of the maintenance amount but certainly this writ application under Article 227 of the Constitution of India is not maintainable before this Court. (6) From perusal of the impugned order, it appears that the learned Court below found that the application was filed on 18.11.2010. Admittedly, the impugned order has been passed on 19.05.2011. During this long period, the petitioner never filed any rejoinder to the application under Section 24 of the Hindu Marriage Act. The learned Court below found that according to the respondent, the income of the petitioner is Rs.25,000 per month. There is no contrary statement on behalf of the petitioner because there was no counter-affidavit. From perusal of Annexure-7 of the writ application, it appears that a rejoinder application was filed by the petitioner on 24.06.2011 i.e. after passing of the impugned order. Therefore, there is no question of consideration of this rejoinder arises. Whatever statement of facts made in the rejoinder application cannot be the ground for setting aside the impugned order because this Court in exercise of supervisory jurisdiction has no power to go into the disputed question of facts which requires evidence. It is well settled principles of law that while exercising supervisory jurisdiction, this Court cannot turn itself to an 5 Appellate Court and re-appreciate the evidence. So far the submission of the learned counsel that the petitioner was prevented to appear before the Court below as criminal case was instituted is concerned, it appears that the application was filed much earlier and the petitioner was appearing physically before the Court below but he did not file any rejoinder. According to the learned counsel for the petitioner there was conciliation proceeding. So far this submission is concerned, there is no bar to file rejoinder because reconciliation proceeding was going on. The fact is that reconciliation proceeding failed. For what reason the reconciliation failed is immaterial. (7) So far the submission of the petitioner that he was not heard is concerned, it may be mentioned here that the petitioner did not file the rejoinder himself and, therefore, he cannot be allowed to blame the Court. It appears that for about more than 4-5 dates after filing the application under Section 24 of the Hindu Marriage Act, the petitioner was being present physically before the Court and/or was represented through his Advocate. So far filing of rejoinder after passing impugned order is concerned, has got no meaning. Considering all these aspect of the matter, the learned Court below has passed the impugned order. Therefore, it is not a case of jurisdictional error. The supervisory jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct every 6 mistake of law and fact. (8) In (2010) 9 SCC 385(Jai Singh and others vs. Municipal Corporation of Delhi), the Apex Court has held that “the High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.” The jurisdiction under Article 227 of the Constitution of India cannot be exercised like a “bull in a china shop” to correct errors of judgment of a Court. The same can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Here, in the present case at our hand, it appears that the present petitioner himself is guilty of latches and delay. Although, he was appearing for several dates but did not choose to file rejoinder on the ground that conciliation is going on. It is also well settled principles of law that the person who himself is guilty of latches cannot be allowed to invoke supervisory jurisdiction. It is also well settled principles of law that only for the fixation of quantum, no supervisory jurisdiction can be exercised. If the petitioner is aggrieved regarding the quantum of maintenance, the petitioner may 7 approach the Court below. (9) The learned counsel for the petitioner relied upon a decision reported in 2007(3) P.L.J.R. 96(Nilay Kant Mishra vs. Vibha Mishra) and submitted that the direction to pay the arrears from the date of order and not from the date of application should be made. From perusal of the said decision, it appears that in that case, the application was filed in 2002 and the order was passed after 3 years by the Court below. It was found that the delay was due to the husband. However, in the said decision, it has been held that generally the interim maintenance is awarded from the date of application. Here, in the present case at our hand, the fact is otherwise. The petitioner himself delayed the matter and also still today it is not his case that he paid a single farthing to the respondent. Now, therefore, he cannot be allowed to say that the order should be passed to pay maintenance from the date of order. (10) So far quantum of Rs.8,000 per month is concerned, in my opinion, it is exaggerated in view of the income of petitioner. Generally, 1/5th of the income is granted as maintenance, therefore, the order passed by the Court below is modified to the extent that the petitioner shall pay the monthly maintenance of Rs.5,000 as directed by the Court below. The other part of order and direction of the Court below is hereby upheld. 8 (11) In view of the above consideration, this writ application is allowed in part and the order of the Court below dated 19.05.2011 is modified to the extent indicated above. Saurabh ( Mungeshwar Sahoo, J.)