IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.36 of 2007 MUKESH KUMAR Versus STATE OF BIHAR & ORS With C.R. No.456 of 2008 MUKESH KUMAR Versus THE STATE OF BIHAR & ORS ----------- 7 11.7.2008 Heard Counsel for the parties. The first Civil Revision Application No. 36/2007 is with regard to an order of the Family Court fixing an amount of Rs. 6,000/- as maintenance for the wife/opposite party and minor daughter in purported exercise of Section 125 of the Code of Criminal Procedure. Counsel for the petitioner has basically made two submissions namely (i) the order dated 18.10.2006 passed by the Family Court without making an effort for amicable settlement as is enjoined under Section 9 of the Family Court Act read with rules is vitiated by an apparent jurisdictional error (ii) the findings with regard to the income of the petitioner having been not arrived on any evidence, the impugned order directing petitioner to pay Rs. 6,000/- (Rs. 3,000/- for the wife and Rs. 3,000/- for the daughter) also suffers from material irregularity. On the other the Counsel for the opposite party/wife has submitted that the question of amicable settlement was impractical and in fact out of question because once a serious allegation had already been leveled by the petitioner against the opposite party on 2 her personal character of leading an adulterous life, there was no scope for the opposite party to accept an amicable settlement. He has also given certain background for this aspect including filing of the criminal cases and other litigations to justify that as a matter of fact in such circumstances, the Family Court which was a transferee court in the proceedings under Section 125 Cr.P.C. was of the opinion that no effective result could have been obtained from such amicable settlement. In the opinion of this Court, this issue should have been looked into and decided by the Court below with a complete clarity after recording the statement of both husband and wife in person because at times the sincere effort of amicable settlement made by the Court does not yield a fruitful result. Accordingly, this Court would direct the Family Court to make a fresh concerted effort for an amicable settlement. However, the issue of amicable settlement apart the main question is with regard to the quantum of the amount of maintenance. In this regard, it is the submission of the Counsel of the petitioner/husband that the amount of Rs. 6,000/- imposed on the petitioner is absolutely without any basis. He has in this context referred to the pleadings on record namely the application filed by the opposite party/wife under Section 125 of the Code of Criminal Procedure wherein all that on the question of income has been said can be found in paragraph no.5 of her application which reads as follows :- 3 **5 ;g fd foi{kh ,d i<+k fy[kk **d`f"k foKku^^ esa ih-,p-Mh- fd;k gS vkSj dydRrk esa fdlh futh izfr"Bku esa 15]000@& :I;s ekfld ij dk;Z djrk gS rFkk foxr 6 ekg l svc fdlh vU; izfr"Bku esa dk;Zjr gSA foi{kh dks viuk nks eaftyk edku fNrkSuh] eksfrgkjh esa fLFkr gS] ftls uhps ds [k.M esa fdjk;k ls 3]000@& :I;k ekgokjh vkenuh gSA foi{kh dks viuh iS=kd d`f"k ;ksX; Hkwfe Hkh gS] ftlls lykuk vkenuh djhc 1 yk[k :I;k gSA bl rjg ls foi{kh dks vius uhft osru] fdjk;k ds edku ,oa d`f"k mRiknu ls djhc 25]000@& :i, ekgokjh vkenuh gSA nwljh rjQ vkosfndk ¼vkHkk flUgk½ ,d vkfJr efgyk gS vkSj 'kknh ds ckn ls og foi{kh ij gh iw.kZ :is.k vkfJr gSA izkFkhZ la[;k 2 Hkh iw.kZ :is.k vius firk ¼foi{kh½ ij vkfJr gSA^^ Counsel for the petitioner in this context has also placed before this Court a certified copy of the rejoinder by way of show- cause filed by the husband/opposite party wherein the aforementioned statement of the wife contained in paragraph no.5 has been controverted by him in the following manner:- “7. That, in para no.5 of the petition the status of opposite party is given and in this respect, it is humbly submitted that the opposite party is Ph.D. in agriculture science but it is false to say that he works and his salary is about fifteen thousand. Due to act of this petition, the opposite party got sentimentally disturbed, so he does not find himself to work any where and so far the house is concerned it is not of opposite party rather it is of his mother and it is not ancestral property so the petitioner is not competent to claim for share so far land properties are concerned, if these will be partitioned in the family, he will get six to seven Katha of the cultivable land, which is not sufficient to feed a person for a couple of months. It is false to say that he has got income of twenty five thousand per month rather he is dependent upon his father. It is not out 4 of way to mention before your honour that the petitioner filed a complaint case under Section 496(A) I.P.C. including other, sections of I.P.C. in which she has admitted that her husband is an educated unemployed person, so she herself making two different statements, which is sufficient to show that she is not at all fair and all the cases are being filed motivatively and intentionally. She wants to not only harass opposite party rather wants to rain the entire family as she has made accused to each and every family members as well relations of opposite party in case under Section 498(A) I.P.C. & others sections of I.P.C. Photo copy of C.C. of Bettiah Mufassil P.S. Case No. 114/2003 is being file for your honours kind perusal.” Counsel for the petitioner in the light of the aforementioned pleadings, submits that when an issue on the income of the petitioner had emerged, the Court below was required to look into evidence adduced by the parties in support of their respective claim. He has however, submitted that the maintenance case came to be decided only on the basis of the aforementioned pleadings inasmuch as no evidence was adduced before the Court below and in that view of the matter, the impugned order cannot be sustained. Counsel for the wife opposite party however submitted that when the petitioner husband did not produce his salary statement/pay slip a bald denial by him would not have been sufficient to disbelieve the specific assertion of the wife opposite party. In the opinion of this Court, the submission of the Counsel for the petitioner is well founded. 5 It is well settled that in a proceedings under Section 125 of the Code of Criminal Procedure the Court while deciding the issue of income take the averments made in the pleadings of the parties but then the income of a person being a question of fact is required to be decided in the light of evidence and for that purpose, the Court below had to examine the oral and documentary evidence adduced by both the parties. That having been not done, this Court cannot approve the impugned order granting Rs. 6,000/- per month (Rs. 3,000/- for the wife and Rs. 3,000/- for the child) and accordingly, the impugned order is hereby set aside. As a consequence of setting aside the impugned order, the Court below is directed to take up the hearing of this case under Section 125 of the Code of Criminal Procedure by directing the parties to lead their evidence. The evidence which has to be led by both the parties must be completed within a period of three months from the date of receipt/production of a copy of this order. It is however, made clear that the income of the petitioner being a fact under his special knowledge, he must discharge the onus on him under Section 106 of the Evidence Act and must produce his latest salary statement duly certified by his employer in absence whereof, the assertion of his wife, the opposite party will have to be accepted. Upon completion of evidence, the Court below must pass a final order within next two months from the date of closing of evidence by both the parties. This Court would however direct the petitioner/husband to 6 keep on paying a sum of Rs. 6,000/- for the aforementioned period till the final order is passed by the Court below under Section 125 of the Code of Criminal Procedure. It goes without saying that in case the amount is not enhanced or is not reduced, then the petitioner will be liable to pay the same amount even for the future as well as the arrears from the date of filing of the application by the wife opposite party but in case the amount of maintenance is reduced, the Court below would also pass an order for adjustment of excess amount paid if any, either earlier or under the present order of this Court. With the aforesaid observations/directions, the first Civil Revision Application No. 36/2007 is disposed of. C.R. No. 456 of 2008 In the second Civil Revision Application No.456/2008, the petitioner/husband has assailed the order of the Court below, the Principal Judge, East Champaran, Motihari in Divorce Case No. 158/2005 which has been filed by the wife. By the impugned order, the Court below has allowed a consolidated amount of Rs. 25,000/- towards the litigation cost taking into account that the opposite party has to travel on each and every date of the case from Bettiah to Motihari and that she is contesting the matter for last 2-3 years. This Court taking into account that the litigation which has started way back in the year 2003 and the same is continuing for last five years and is still likely to go for a couple of years in the Court below, would not find the amount of Rs. 25,000/- to be either excessive or unreasonable and therefore, no interference is called for 7 in the second Civil Revision Application no. 456/2008 and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)