IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.87 of 2008 KUMAR ACHYUTA NAND JHA Versus SMT. PREMLATA THAKUR With C.R. No.479 of 2008 KUMAR ACHUTA NAND JHA @ ACHUTANAND JHA Versus PREMLATA THAKUR ----------- 6 17.12.2008 Heard counsel for the parties. Reference may be made to the earlier order of this Court dated 5.9.2008, 30.9.2008 and 19.11.2008 in C.R. No. 87/2008, wherein this Court on being persuaded by the counsel for the husband-petitioner that a settlement between the husband and the wife was not only in their own interest but also in the interest of the minor child, had made efforts for some sort of amicable settlement of matrimonial dispute. Pursuant thereto, the petitioner Kumar Achyuta Nand Jha and the wife Smt. Premlata Thakur have appeared in person and have explained their stand. While the wife-opposite party is prepared to restore her relationship with the husband-petitioner despite all the humiliation faced by her in the hands of the petitioner and his family members the husband-petitioner is not at all inclined to reach to some sort of settlement and in no uncertain terms has conveyed to this Court that he is not prepared to restore his relationship with the wife- 2 opposite party. In that view of the matter, any settlement as initially proposed by the counsel for the petitioner himself, on account of defiant attitude of the petitioner, is automatically ruled out. In view of the order of this Court, Bauaji @ Shitanshu Mishra, who had allegedly put his signature on a memorandum prepared on 30.8.2006 containing his signature along with the signature of the wife- opposite party has appeared in person and has admitted that the same bears his signature. He however, has stated that he was not aware of the items and/or commodities which have been mentioned in this memorandum in as much as they were kept in the box and had no opportunity to verify the contents of the box and that he by believing the statement of the wife- opposite party that such items were kept inside the box had put his signature on the memorandum dated 30.8.2006. Thus the evidentiary value of this memorandum heavily relied by the petitioner pales into insignificance and infact becomes a highly doubtful and disputed document specially when the other signatory i.e. the wife opposite party has denied the innocence projected in the story of Bauaji @ Shitanshu Mishra. The wife opposite party has stated before this court in presence of the petitioner that actually the 3 memorandum dated 30.8.2006 was prepared under threat and coercion of the petitioner who was desperate to create some sort of documentary evidence for creating an impression that the wife opposite party had voluntarily left the house of the petitioner leaving her minor daughter, aged about seven months in custody of the petitioner. This aspect of the matter however gets exposed from the version of the petitioner himself who admits that Bauaji @ Sitanshu Mishra is his friend and colleague and was brought by him to his house for being a witness to the episode of the wife leaving his house on her own free will and accord. Added to it, the wailing of mother in this court below and this Court for her infant child itself gives a death below to the story invented by the petitioner that the wife opposite party, even though a mother was not desirous of keeping her infant daughter with her. It is in this background this court has to decide these two petitions with regard to the custody of the child (C.R. No. 87/2008) and the amount of ad-interim maintenance in terms of Section 24 of the Hindu Marriage Act (C.R. No. 479/2008). Mr. Ashutosh Jha, the learned counsel for the petitioner in C.R. No. 479/2008 while questioning the amount of maintenance has made two fold submissions. 4 Firstly, it has been stated by him that the Court which had passed the order on 30.1.2008 had been left with no such jurisdiction inasmuch as by an order of the State Government dated 29.1.2008, he had already been reverted back from the post of Principal Judge to the post of Additional District & Sessions Judge. The submission therefore is that in the light of the aforesaid order of the State Government dated 29.1.2008 reverting the Presiding Officer of the family court, he could not have passed the impugned order on 30.1.2008. Learned counsel appearing on behalf of the petitioner however on being asked as to what is the proof that the order of the State government dated 29.1.2008 had already been acted upon and intimated to the Court on 30.1.2008, has not been able to produce anything except draw an inference from the last page of the order showing with regard to the sudden illness of Presiding Officer in the Court on 30.1.2008. That unfortunately cannot be a proof of service of order dated 29.1.2008 and in that view of the matter, the defacto doctrine will definitely be applicable so as to save any judicial order passed by an authority/judge who has subsequently been found to be unfit for his position and/or office. The next submission, with regard to the quantum of monthly maintenance amount of Rs. 2,000/- on 5 account of there being a restricted income of the petitioner has also to be noticed for its being rejected. The petitioner, a teacher in Anandram Dhandhania Saraswati Vidya Mandir has produced his salary statement for the month of November, 2008 which would go to show that his basic salary is 5850/-, D.A. paid therein on is Rs. 1,219/- and the P.F. contribution thereon is Rs. 731/-. The total salary therefore, of the petitioner comes to the vicinity of Rs. 7,800/- approximately. Out of this his only contribution to the provident fund is Rs. 731/-. That would leave the petitioner still with a sum of Rs. 7,000/- approximately. In that view of the matter, if even the normal principle of 1/3rd is applied, the petitioner becomes entitle for payment of Rs. 2,500/- and in that view of the matter, the order of the Court awarding Rs. 2000/- per month by way of maintenance to the wife, who has no independent source of income, is neither illegal or excessive. Consequently, there is no merit in the Civil Revision No. 479 of 2008 which must be and is hereby dismissed with a direction to the petitioner to pay the entire arrear and current amount as per the impugned order within a period of one month from the date of receipt/production of a copy of this order failing which 6 the Court below shall be at liberty to take coercive steps against the petitioner for its realization from the petitioner. Coming now to the merits of the second case i.e. Civil Revision No. 87 of 2008, this Court would find that depriving the wife-opposite party from her own child, that too from 30.8.2006, while the child was aged about six months only was a heinous crime and a cruel act on the part of the petitioner and his family members. Section 6 of Hindu Minority and Guardianship Act 1956 enjoins that custody of a minor child of up to the age of five years will ordinarily be with the mother. Here too the custody of 21/2 years old female child in view of the paramount interest of welfare of the child, must be restored to the wife opposite party specially when the petitioner has admitted that he is not looking after the child rather it is his mother who has been retaining the child. That being so, this Court would not find any error in the detailed reasoned impugned order dated 13.12.2007 of the court below restoring the custody of the child at present aged about 21/2 years to the wife- opposite party. The Court below infact had not only examined the petitioner husband and the wife opposite party but had also appreciated oral evidence adduced by both the parties and only thereafter had recorded that 7 the welfare of the child could better be secured by entrusting the custody of the minor child to the mother i.e. the wife-opposite party. There being no manifest must less any jurisdictional error in such order of the court below, the same must be and is hereby upheld. The petitioner must accordingly handover the custody of child to the wife-opposite party and comply this part of the direction of the Court below in the impugned order within a period of fifteen days from the date of receipt/production of a copy of this order. In the event, the custody of the child is not restored to the wife- opposite party within the aforesaid period of fifteen days, the court below will take immediate and appropriate recourse for restoring custody of the child to the wife- opposite party, even by seeking assistance from the police. With the aforementioned observations and directions, both the civil revision application are hereby dismissed. Rsh (Mihir Kumar Jha, J.)