IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.40 of 2008 MD. MOKHTAR ALAM alias Md. Mokhtar son of Md. Abdul Shakur resident of village Mohalla Chakhamja, P.S. Sanokhar & District Bhagalpur. Versus FIROJA KHATOON wife of Md. Mokhtar resident of village Chanasthu, P.s. Sanhaula, District Bhagalpur ----------- For the Appellant : M/S. Bhola Prasad & Swapnil Kumar Singh. For the Respondent: Mr. Ravindra Nath Dubey. ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 10th November, 2008. This appeal is by the husband aggrieved by the order dated 2nd November, 2007 passed by the Principal Judge, Family Court, Bhagalpur in Misc. Case No. 66 of 2004 whereby the appellant has been directed to pay an amount of Rs. 50,000/- (Rupees fifty thousand) to the respondent-wife. 2. That the marriage between the appellant and the respondent subsists is not in dispute. 3. For the sake of convenience, we shall refer the parties ‘husband’ and ‘wife’. The wife made an application seeking maintenance from the husband at the rate of Rs. 1000/- (Rupees one thousand) per month under section 125 of the Code of Criminal Procedure, 1973 before the Family Court. In the application, the wife - 2 - alleged that in the month of February, 2003, the husband assaulted her and turned her out from the matrimonial home. It appears that during the pendency of the proceedings under section 125 of the Code of Criminal Procedure, 1973, the parties filed a joint application resolving their dispute amicably. As per the said agreement, the parties agreed to reside together; the husband agreed to take the wife to his house from the Court itself with an assurance that he would treat his wife with honour and that she would not be harassed and humiliated. The agreement recorded that in case wife was subjected to any physical or mental cruelty, then she would be entitled to a compensation in the sum of Rs.50,000/- (Rupees fifty thousand) from her husband. It was also agreed that in case the wife did not behave properly, her father would be liable to pay a sum of Rs.50,000/- (Rupees fifty thousand) to the husband. Based on the said joint application, the Principal Judge, Family Court disposed of the application made by the wife under section 125 of the Code of Criminal Procedure accordingly vide order dated 16th January, 2007. The Principal Judge, Family Court, in his order also directed that for a period of one year, on the last day of each calendar month, the parties would appear before the Court. 4. On 5th February, 2007, the parties appeared before the Principal Judge, Family Court, Bhagalpur pursuant to the direction given in the order dated 16th January, 2007. The parties also appeared before the Family Court on 28th February, 2007. On 15th March, 2007 - 3 - the wife informed the Court that she has been kept as a maid-servant at her in-laws place and that her husband has not been talking to her. The Principal Judge, Family Court directed the parties to appear before the Court on 12th April, 2007. On 12th April, 2007 the parties appeared. Thereafter the parties appeared before the Family Court on 1st May, 2007, 30th May, 2007, 30th June, 2007 and 9th July, 2007. On none of these dates, the wife made any grievance about the ill- treatment meted out to her by her husband or that she was being tortured or harassed by her husband or his parents. However, on 16th July, 2007 an application was filed by the wife before the Family Court alleging that she was being harassed by her husband and that he was not interested in keeping her. The Principal Judge, Family Court did not pass any order on the application and directed the parties to appear before the Court on 21st July, 2007. On 21st July, 2007 the husband appeared before the Court but the wife remained absent. The matter was kept on 30th July, 2007. On that day also both the parties appeared before the Family Court. The wife on that day again made an application stating therein that her life has been made hell by her husband; that he has been staying with his second wife and that appropriate action be taken against him. The Family Court did not pass any order on that application as well and kept the matter for 7th August, 2007 directing the parties to appear before him on that date. On 7th August, 2007 both the parties appeared. The wife again made an application before the Court that she was being harassed by her - 4 - husband. The Family Court adjourned the matter for 18th August, 2007. On 18th August, 2007, the wife again reiterated that she was not being kept properly by her husband and in-laws. The Principal Judge, Family Court kept the matter for 27th August, 2007. On 27th August, 2007 both the parties appeared. On that day, no grievance seems to have been raised by the wife against her husband. The matter was kept for 6th September, 2007. On 6th September, 2007 an application came to be filed by Md. Bashir, father of the wife alleging therein that he apprehends danger of her daughter’s life at the hands of the husband and his family members. The Family Court adjourned the matter for 13th September, 2007. On that date the husband appeared but his wife was not present. The Principal Judge, Family Curt directed the husband to keep his wife present before the Court on the next date i.e. 15th September, 2007. On 15th September, 2007 both the parties appeared and the matter was kept for 25th September, 2007. The presence of both the parties was recorded on 25th September, 2007 and the matter was kept for 1st October, 2007. The parties were present before the Court on 1st October, 2007 and it was adjourned for 10th October, 2007. On 10th October, 2007 both the parties were present and the matter was kept for 1st November, 2007. On 1st November, 2007 an application was made on behalf of the wife alleging therein that her husband and his family members have turned her out of the matrimonial home after assaulting her. It was also alleged that they have threatened her that she would be killed. She, - 5 - accordingly, prayed that her husband be directed to pay her a sum of Rs.50,000/- (Rupees fifty thousand) and that he be also directed to pay maintenance at the rate of Rs.1000/- (Rupees one thousand) per month. The Family Court kept the matter on the next date i.e. on 2nd November, 2007. 5. On 2nd November, 2007 the husband made an application before the Court that his wife has left matrimonial home voluntarily and has gone to her parents’ home. The Family Court heard the parties on 2nd November, 2007 and directed the husband to pay a sum of Rs.50,000/- (Rupees fifty thousand) to the wife. The Principal Judge, Family Court recorded that the husband’s father appeared and prayed for time for paying the amount of Rs.50,000/- (Rupees fifty thousand) to the wife within one month. 6. It is this order that is impugned in the present appeal. 7. Before we deal with the matter further, we deem it proper to record here a fact that was brought to our notice by the counsel for the husband that the husband has been committed to civil prison with effect from 4th February, 2008 for non compliance of the order dated 2nd November, 2007 and since then he is detained there. 8. We are pained to observe that the manner in which the proceedings have been conducted by the Principal Judge, Family Court, Bhagalpur, can hardly be appreciated. Once the proceedings under section 125 of the Code of Criminal Procedure, 1973 stood terminated on the basis of a compromise entered into between the - 6 - parties, the Family Court became functus officio. We fail to understand on what basis the Court continued to be in seisin of the matter after disposal of the proceedings under section 125 Cr.P.C. If there was non compliance of the order dated 16th January, 2007 by the husband, the Family Court ought to have considered the application made in that regard in accordance with law. However, for the reasons best known to the Principal Judge, Family Court, he continued to monitor the case relating to maintenance even though the said proceedings stood disposed of. In our view, the course adopted by the Family Court cannot be countenanced. Be that as it may, the application made by the wife on 1st November, 2007 alleging breach of the order dated 16th January, 2007 by the husband could not have been decided without holding proper enquiry by the Family Court. Neither the evidence of the parties was recorded nor they were subjected to any cross examination by the other side. In the absence of any inquiry, the findings recorded by the Family Court in its order dated 2nd November, 2007 cannot be sustained. It is unfortunate that because of such erroneous approach and gross processual irregularity the appellant has to suffer civil imprisonment and which he continues to suffer until today. Arrest and detention in the civil prison cannot be ordered so casually. The procedure as provided in law has to be followed. Even if we assume that there was some breach of compromise by the husband, his liberty could not have been jeopardized in the manner it has been done in the present proceedings. - 7 - The whole approach of the Principal Judge, Family Court in dealing with the matter has been far from satisfactory. 9. The order dated 2nd November, 2007 is liable to be set aside and we set it aside accordingly. The Principal Judge, Family Court, Bhagalpur shall consider the application made by the respondent on 1st November, 2007 afresh in accordance with law and pass an appropriate order after holding necessary inquiry. As a result thereof, the order passed by the Principal Judge, Family Court, Bhagalpur committing the appellant to civil imprisonment is also quashed and set aside. The parties shall bear their own cost. 10. The appeal is disposed of accordingly. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-