IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.64 of 2018
Arising Out of PS. Case No.- Year-1111 Thana- District-

Basuki Nath Ray son of Ramji Ray, resident of Mohalla Newalal Chowk, P.S.
Purnea, P.S. Purnea, District Purnea

… … Petitioner/s
Versus

1. The State Of Bihar

2. Smt. Khushboo Kumari, D/o Dilip Kumar Ray, wife of Basuki Nath Ray,
resident of Village Sakin-Omnagar, P.S. Araria, District Araria

… … Respondent/s

Appearance :

For the Petitioner/s : Mr. Samir Kumar, Advoate
For the State : Mr. Md. Arif, APP
For the O.P. No. 2 : Ms. Smiti Bharti, Advocate

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 02-07-2019

Heard learned counsel for the petitioner; learned APP for

the State and learned counsel for the opposite party no. 2.

2. The petitioner has moved the Court under Section 19

(4) of the SectionFamily Courts Act, 1984 for the following relief:

” That this application is being preferred to set aside the
order dated 28-11-2017 passed by court of Principal
Judge, Family Court, Araria in Maintenance Case No.
232 of 2016, filed under Sections 24 of the Hindu
Marriage Act and same was disposed of under Section
125 of Cr. P.C.”

3. The opposite party no. 2, being the wife of the

petitioner, filed Maintenance Case No. 232 of 2016 in the Court of

Principal Judge, Family Court, Araria, initially under Section 24 of

the Hindu Marriage Act (hereinafter referred to as the ‘Act) and
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later after amendment the same was modified to be under Section

125 of the Code of Criminal Procedure, 1973 (hereinafter referred

to as the ‘Code’) (though not specifically mentioned). After full

trial, the order impugned was passed awarding monthly

maintenance of Rs. 8,000/- in favour of the opposite party no. 2 to

be paid by the petitioner.

4. Learned counsel for the petitioner submitted that

though initially a petition was filed under Section 24 of the Act but

later on even after correction, the correct statute was not

mentioned as it has been written as Section 125, SectionMaintenance Act

and no such Act being in force, the order itself becomes

unsustainable having been passed without any jurisdiction in law.

It was submitted that the petitioner was ready to keep the opposite

party no. 2 with him but she refused to do so. It was further

submitted that once the petitioner was ready to keep the opposite

party no. 2 with him, it was incumbent upon the Court to record

the reason why refusal to do so would still entitle the opposite

party no. 2 to maintenance. For such proposition, he relied upon

the decision of the Allahabad High Court in SectionAbdul Ahad v.

Nasreen Bano reported as 1994 CRI. L.J. 688. Learned counsel

submitted that the order records that with regard to demand of
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dowry and miserable life faced by the opposite party no. 2, as per

her deposition, he may be permitted to cross-examine her.

5. Learned APP and learned counsel for the opposite

party no. 2 submitted that the petitioner is only taking such stand

to somehow either linger the matter or derive undue benefit. It was

submitted that initially after appearing in the present case, he was

avoiding appearance in the present case, though he was appearing

in the case filed by the opposite party no. 2 under Section 498A of

the Indian Penal Code. It was further submitted that petitioner’s

offer to live with opposite party no. 2 is only for the purpose of

getting over any adverse order from the Court, moreso as he has

already married another woman, though not officially announced.

6. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

does not find any merit in the present case. On the issue raised by

learned counsel for the petitioner with regard to wrong mentioning

of the provision of law, suffice to say that such inadvertent error

has been held to be absolutely of no value, muchless, have any

fatal effect on the proceeding. The fact that Section 125 of the

Code has been quoted and an application for amendment was filed

after service of notice on learned counsel for the petitioner before

the Court below and in his presence the order passed, itself fulfills
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the requirement of there being due notice to the other side with

regard to any proceeding or amendment. Moreover, if at all, the

petitioner was aggrieved by any amendment allowed by the Court

below, it was incumbent upon him to move before the appropriate

forum and not having done so, such issue cannot be raised before

this Court, at the time of considering the final order passed by the

Court below in the said proceeding.

7. As far as the decision of the Allahabad High Court in

Abdul Ahad (supra) is concerned, the Court would only observe

that in the said case, the Court had held that without there being

justification for refusal to live with the husband would not entitle

the wife to maintenance whereas in the present case, there being a

finding that she was ill treated due to non-fulfillment of demand of

dowry and was leading a miserable life, which has gone

unrebutted/uncontroverted, it cannot be said that the Court below

has totally not considered the issue.

8. Thus, on an overall view of the matter, the Court does

not find any error in the order impugned to warrant any

interference. Accordingly, the application stands dismissed.

9. Before parting, the Court deems it necessary to take

note of the fact that a supplementary affidavit has been filed on

behalf of the petitioner today, in which it has been stated that in
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terms of the order passed in the present case on 21.08.2018, he has

paid Rs. 4,000/- to the opposite party no. 2. On a query as to

whether Rs. 4,000/- per month has been paid up-to-date, reply is

that the order only indicated payment of Rs. 4,000/-. The order

dated 21.08.2018 reads as under:

“The petitioner / husband has challenged the
final order dated 28.11.2017 passed by the learned
Principal Judge, Family Court, Araria in Maintenance
Case No. 232 of 2016, whereby he has been asked to
pay an amount of Rs. 8,000/- (eight thousand) per
month to the Opposite Party No. 2 towards her
maintenance.

Learned counsel for the petitioner has
submitted that without ascertaining the financial
health and capacity of the petitioner, the present order
has been passed.

Issue notice to Opposite Party No. 2, by both
modes, i.e., under ordinary process as well as
registered cover with A/D, on steps being taken by the
petitioner for filing requisites etc. within a period of
two weeks from today, returnable on 25.09.2018.

In the meantime, the petitioner shall pay an
amount of Rs. 4,000/- (four thousand) to Opposite
Party No. 2.”

10. Bare perusal of the aforesaid, leaves no doubt that

Rs. 4,000/- being directed to be paid to the opposite party no. 2

clearly and obviously meant payment of Rs. 4,000/- per month and

not as a one time measure. Such interpretation is absolutely

misconceived and patently perverse. In fact, the Court is inclined

to impute motive to the petitioner for such blatant
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misrepresentation and misconstruing of the direction contained in

order dated 21.08.2018, for which the Court would have separately

taken suo motu cognizance. However, it refrains from doing so.

11. It goes without saying that the Court below shall

ensure that payment, as per the order impugned, is made to the

opposite party no. 2, failing which all necessary steps, including

coercive measures, shall be taken by the Court concerned to ensure

that the order is strictly complied with by the petitioner.

12. The Lower Court Records be returned forthwith.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR
U
T