IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.551 of 2007 SATISH KUMAR Versus ANITA DEVI ----------- 2 19.08.2008 Heard counsel for the petitioner and counsel for the opposite party. In the opinion of this Court, the whole issue has been rather jinxed, mainly because of the dubious conduct of the petitioner. The petitioner out of his own volition had conveyed to the Court below in Matrimonial Case No. 20 of 2001 that he was prepared to pay a sum of Rs. 1500/- by way of monthly maintenance to his wife and Rs. 125/- per day of proceedings towards cost of litigation. This part of undertaking of the petitioner is recorded in the order of Court below dated 16.12.2003. It has to be mentioned that a review application filed by the petitioner before the Family Court against the aforementioned order dated 16.12.2003 was also dismissed on 18.8.2004 and the same was also affirmed by this Court in an order dated 24.11.2005 in Cr. Misc. No. 33748/2004. It appears that in the meantime the petitioner was arrested in connection with a - 2 - criminal case filed by his wife and in that case he took a specific plea before this Court that since he had already paid the maintenance of Rs. 1500/- per month to his wife he may be allowed bail. This Court accepting the said submission of the petitioner had allowed the bail by order dated 13.8.2004 in Criminal Misc. No. 22446 of 2004. Subsequently, when this amount of Rs. 1500/- per month was not paid, his wife had moved this Court in Criminal Misc. Case No.7360 of 2005 seeking cancellation of bail of the petitioner on the ground that the amount so directed towards monthly maintenance had not been paid to her by the petitioner. This Court, by an order dated 5.7.2005 in Criminal Misc. Case No. 7360 of 2005 having noted the submission of the counsel for the petitioner that he was not in a position to pay a sum of Rs. 1500/- per month as was agreed by the petitioner at the time of grant of bail on 13.8.2004, had passed an order cancelling his bail. The petitioner thereafter against such order of cancellation of his bail dated 5.7.2005 had moved the Apex Court in S.L.P.(Cr.) No. 4778 of 2005 (Criminal Appeal - 3 - No. 747 of 2006) and the Apex Court as part of the condition of continuing the petitioner on bail had passed the following orders on 10.07.2006:- “The appellant is an accused in a case filed under Section 498-A of IPC. He offered to pay Rs.1500/- per month as maintenance to his respondent wife- Mrs. Anita Devi and on that condition he was granted bail but later on he refused to comply with the order and the bail was accordingly cancelled. Aggrieved by the same, the present SLP has been filed. Counsel for the appellant submits that the appellant was having a job and he lost the same subsequently and therefore he was unable to pay any amount to his wife. We are not impressed by this argument and the appellant was not paying anything to his wife. Having regard to the facts and circumstances of the case, we direct that the appellant shall pay a sum of Rs. 5,000/- within a month and - 4 - he shall continue to pay Rs. 1,000/- per mensem and the amount shall be paid on or before 5th of every month and if he fails to pay for two months consecutively, the respondent will be at liberty to bring this fact to the notice of the High Court for revocation of this bail. The cancellation of the appellant’s bail is set aside subject to the above conditions. Appellant to appear before the Trial Court on every adjournment of the case”. Thereafter it is the case of the petitioner that he has paid Rs.5000/-which has been deposited in the Court below and he has been also paid a sum of Rs. 1000/- after the month of July, 2006. The petitioner thereafter moved the Court below in seisin of the divorce case to take up his hearing of the divorce case being Matrimonial Case No. 20 of 2001. The Court below however had directed the petitioner to comply the order dated 16.12.2003 in letter and spirit. The Court below in fact has refused to - 5 - proceed further till the petitioner would deposit the said amount towards the maintenance and cost of litigation. Counsel for the petitioner would submit that the order of the Supreme Court has in effect wiped out the order of the matrimonial case dated 16.12.2003 and he submits that Rs. 5000/- awarded by the Supreme Court was towards the entire arrears from 16.12.2003 to 10th of July, 2006. He therefore submits that the approach of the Court below in insisting to pay the amount of maintenance as per its order dated 16.12.2003 is wholly uncalled for and unjustified. Counsel for the opposite party, on the other hand, on the strength of the order dated 18.8.2004 passed by the Court below in Criminal Misc. Case No. 20 of 2001 rejecting the review application of the petitioner and as against the sum of Rs. 1500/-per month and Rs. 125/- per day of proceedings by way of cost of litigation has submitted that this order of payment of maintenance has become final specially when the aforementioned order dated 18.8.2004 having been assailed by the - 6 - petitioner before this Court in Criminal Misc. Case No. 33748 of 2004 had also been affirmed by dismissing the said application of the petitioner by an order dated 24.11.2005. He, therefore submits that though the opposite party will not be unreasonable in saying that the amount of maintenance of Rs. 1500/- has not been reduced to Rs. 1000/- by the Apex Court but then it would be mere travesty of justice to accept the plea of the petitioner that the Apex Court had also sought to take away the entire arrears which was to be paid by the petitioner in compliance of the order dated 16.12.2003 inasmuch as all that can be said that the Apex Court had only reduced the amount of maintenance from Rs. 1500/- to 1000/- per month and nothing more. In this regard the learned counsel for the wife opposite party had placed reliance also on the order of the Family Court dated 30.5.2006 wherein the petitioner was directed to comply the direction of payment of both of maintenance pendent elite and cost of litigation as a condition precedent for commencing the hearing of the matrimonial case. He was thus quite emphatic in his submission - 7 - that as none of the Court below passed in course of matrimonial case had been interfered with by any high court. Petitioner could not be permitted to proceed with his matrimonial case unless payment as directed made by the husband petitioner. Having given anxious consideration to the aforementioned rival submissions, this Court is of the view that the petitioner is actually reeling under a misconceived notion. It is not in doubt that the order of maintenance pendent elite under Section 24 of Hindu Marriage Act passed by the Court below in a divorce case, Matrimonial Case No. 20 of 2001 dated 16.12.2003 stands affirmed up to the High Court and has not been set aside by Apex Court. However, considering the fact that the order of the Apex Court is dated 10th July, 2006 this Court will accept that part of the submission of the counsel for the petitioner that the amount of Rs. 1500/- gets reduced to Rs. 1000/- specially when the same was passed in presence of the opposite party. That however, will not mean that the Supreme Court had also exempted the petitioner from paying the arrears @ Rs. - 8 - 1000/- per month from the date of the order i.e.16.12.2003. As a matter of fact, if the submission of the learned counsel for the petitioner is accepted it would amount to also wiping out entire cost of litigation @ Rs. 125/- per day of matrimonial proceedings. It is thus clear that whatever condition have been set out by the Apex Court in its order dated 10.07.2006 are applicable only for grant of bail in a criminal proceedings and in no way affect the orders passed under Section 24 of Hindu Marriage Act. The Apex Court infact did not set aside the order dated 16.12.2003 or the order of this Court dated 24.11.2005 affirming the said order dated 24.11.2005. In that view of the matter, this Court would direct the petitioner to pay the entire arrears of maintenance from the date of order i.e. 16.12.2003 at the rate of Rs. 1000/- per month and in addition also pay cost of litigation at the rate of Rs. 125/- per day within a period of 3 months from the date of receipt/production of a copy of this order. In this amount whatever has already been paid by the petitioner either before or after the order - 9 - of the Apex Court may be adjusted by the petitioner but the balance of amount must be paid within aforesaid three months in two equal installments. After the said amount is paid by the petitioner to the opposite party in the aforementioned prescribed period, the Court below will proceed to dispose of the matrimonial case No. 20 of 2001 in accordance with law. With the aforementioned observations and directions this Civil Revision application is disposed of. Bibhash (Mihir Kumar Jha, J.)