IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.899 of 2007 AJAY KUMAR JHA Versus SARITA MISHRA ----------- For the petitioner: Mr. Jitendra Kishore Verma & Mr. Radha Raman Verma, Advocate. For the Opp.party: Mr. Awadhesh Kumar, Mishra, Mr. C.B.Upadhaya & Mr. Vijoy Kumar, Advocate. --------- 4 9/9/2008 Heard counsel for the petitioner and counsel for the opposite party. This application is directed against the order of the court below awarding interim maintenance under section 125 of the Code of Criminal Procedure directing the petitioner, husband to deposit Rs. 2,500/- per month. Counsel for the petitioner firstly submitted that the impugned order has been passed in a mechanical manner and in that application of mind, in as much as, an order in terms of section 125 of the Code of Criminal Procedure could not be treated to be an order under section 24 of the Hindu Marriage Act. Counsel seems to be correct. There was no reason for the court below to record “ Therefore, the opposite party is directed to pay Rs. 2,500/- as interim maintenance to the applicant under 2 section 24 of the Hindu Marriage Act from the date of institution of the case.” This Court fails to understand as to when the petitioner had already divorced his wife on 26.6.2002, and the proceeding pending before the court below is only a proceeding under section 125 of the Code of Criminal Procedure, which also contemplates payment of maintenance even to the divorced wife, how could the court below rely on the provisions of section 24 of the Hindu Marriage Act, which is a provision only for maintenance pendenlite in course of a proceeding under the Act. Apparently, such order on the face of it cannot be sustained as the same would reflect complete non application of mind. This however would not be end of the matter. Mr. Jitendra Kishore Verma, counsel for the petitioner has also submitted that after notice of the application of the wife opposite party under section 125 of the Code of Criminal Procedure Code was served on the husband- petitioner, he had filed his reply and had sought opportunity to prove his case, as 3 with regard to fixation of the amount of interim maintenance which was sought to be passed on such application filed by the divorced wife opposite party in the year 2006 i.e. after almost four years of the divorce and eight years from the date of separation between the petitioner and the opposite party, the impugned order could not have been passed merely by looking into the petition of the wife and reply of the husband petitioner. Grievance of Mr. Verma in this regard is that the court below ought to have at least given an opportunity to adduce evidence to the petitioner whereafter the Court below could have decided the amount of interim maintenance on appraisal of such evidence which could have been produced by the petitioner and the opposite party. The aforesaid submission of Mr. Verma has also some force. It would appear to this court that a unique procedure was adopted by the Court below only because the applicant in the maintenance case was of a lawyer. It has really astonished this court that this 4 court below has made enquiry from the lawyers in her presence in the court room and they have conveyed that the opposite party had no standing in the bar and thus had no income from her practice. On that basis alone it has been presumed by the Court below that she was unable to maintain herself. Such approach of the court below was definitely not in accordance with law. The court below ought to have given at least an opportunity to the petitioner to prove his case as was pleaded in the written statement and in the reply to the petition filed for grant of interim maintenance. One thing is therefore clear that the impugned order has been passed rather hurriedly and in a casual and careless manner. It is well settled that where an order entailing civil and evip consequence is sought to be passed by the court against a person he must be given an effective opportunity of hearing by way of compliance of principles of natural justice. This Court would however find that the principles of natural justice was 5 not followed in this case. Counsel for the opposite party, however, has submitted that even if everything what has been said by counsel for the petitioner is accepted, the amount of Rs. 2,500/- from the date of filing of the application by the wife-opposite party cannot be said to be excessive or illegal. In this context he has referred to the admitted monthly pay slip of the petitioner, who is a Warrant Officer in the Indian Air Force. On the basis of such pay slip it has been claimed by counsel for the opposite party that if gross salary of the petitioner for the month of November, 2006 was Rs. 17,368/-, sharing of Rs. 2,500/- per month for his divorced wife, cannot be said to be excessive. He has also emphasized that now after the month of September, 2008, when monthly salary of the petitioner in view of implementation of the report of Pay- Revision Committee is going to be substantially increased, this court should not interfere with the quantum of interim maintenance of Rs. 2500/- per month. He, 6 therefore, submits that this Court by taking into consideration the subsequent event as well may not disturb the amount of interim maintenance which is to be paid only till conclusion of the proceeding under section 125 of the Code of Criminal Procedure. True it is that the petitioner is questioning the amount of only interim maintenance, but then if the procedure as envisaged under the Criminal Procedure Code have not been followed and/ or reasonable opportunity has not been given to him before passing of the impugned order, the same cannot be justified only on the amount of quantum of such maintenance. It may be possible for the petitioner to establish that the opposite party has substantial means from which she can maintain herself and was not required to be paid any amount towards interim maintenance. In any event the petitioner cannot be deprived from availing an effective opportunity of hearing including leading his evidence even in respect of determination of amount of ad-interim 7 maintenance. Considering all the above aspect of the matter, this Court would set aside the impugned order with a direction to the court below to take-up hearing of the proceeding under section 125 of the Code of Criminal Procedure instead of taking piecemeal decision of grant of interim maintenance. The court below will ensure that the amount of maintenance in the light of the evidence on record is fixed and determined positively within a period of six months from the date of receipt/ production of a copy of this order. Counsel for the petitioner at this stage would pray that he would abide by the interim order passed by this Court fixing payment of Rs. 700/- per month as was directed in the order of this Court dated 11.9.2007. This has been seriously objected to by the counsel for the opposite party, who would say that the same was passed on the pay statement which was no current or up-to-date. This Court would not like to again make any comment on this controversial 8 issue because now it is expected that the issue of admissibility of maintenance including the amount of any, itself will be decided within a period of six months from the date of receipt/ production of a copy of this order. At the same time this Court would not leave the wife opposite party without any source of sustainence in the integer rum period till a final order is passed in the proceeding under Section 125 Cr.P.C. Considering the fact the opposite party is an advocate and a divorced wife of an Officer Indian Air Force this court would direct the petitioner to pay a sum of Rs. 1500/- per month till a final order is passed under Section 125 of the Code of Criminal Procedure. Such payment would be made from the date of this order. It goes without saying that the court below will be at liberty to fix any reasonable amount and would not be guided either by of the amount of Rs. 700/- per month or Rs. 1,500/- per month under the orders of this Court or even by its own amount of Rs. 2,500/-. The Court below 9 would pass such order keeping in view the spirit of section 125 of the Code of Criminal Procedure and the final order would be made operative from the date of filing of the application by the wife opposite party i.e. 4.5.2006. At this stage, this Court would also record that since there is divorce already given by the petitioner under the ex-parte decree dated 29.6.2002, it will also be open for the wife, opposite party to avail remedy under section 25 of the Hindu Marriage Act so that whatever amount is given in the proceeding under section 125 of the Code of Criminal Procedure can be complemented for her maintenance, if needed. With the aforementioned observations/ directions this application is allowed and the impugned order is set aside. ( Mihir Kumar Jha, J) Abhay Kumar