IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.15013 of 2016
Kumar Gaurav, Son of Umesh Kumar Singh, permanent Resident of Village
– Kamarthu, Police Station – Gayghat, District – Muzaffarpur, at present
C/o- Echo Motors Automobiles Pvt. Ltd., in front of Lachit Park, North
Jalukbari, Guwahati, District – Kamrup (M), Assam, Pin 781014.
…. …. Petitioner/s
Versus
1. The State of Bihar.
2. Guriya Kumari, Wife of Kumar Gaurav, daughter of Late Shiv Dayal
Singh, Resident of Pahshaul, P.S. – Katra, District – Muzaffarpur, PIN
843321.
…. …. Opposite Party/s
Appearance :
For the Petitioner/s : Mrs. Archana Sinha, Advocate
For Opposite Party No. : Mr. Rakesh Ranjan, Advocate
For the Opposite Party/s : Mr. Indra Kumar Singh, APP
CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR
SINGH
ORAL ORDER
21 23-03-2018 Heard Mrs. Archana Sinha, learned counsel
for the petitioner and Mr. Rakesh Ranjan, learned counsel for
opposite party no. 2.
The present application has been filed for
modification of the order dated 04.01.2016 passed by a Bench of
this Court (Smt. Anjana Prasad since retired) in Criminal Revision
No. 452 of 2013 (Guriya Kumar Vs State of Bihar Another) to
the extent of modification of quantum of maintenance amount as
Patna High Court Cr.M isc. No.15013 of 2016 (21) dt.23-03-2018 2
by the order under modification the learned Judge has enhanced
the maintenance amount from Rs.10,000/- to 25,000/-.
The factual matrix of the case gets unveiled
from the pleadings and submissions of the parties that the
marriage of the petitioner with opposite party no. 2 was performed
on 28-29.06.1999 and subsequently they were blessed with a baby
girl in 2003. Somehow or the other, the differences cropped up
between the parties, whereupon and the petitioner Kumar Gaurav
filed Matrimonial Suit No. 120 of 2004 before Principal Judge,
Family Court, Muzaffarpur on 08.11.2004 with a prayer for decree
of divorce under Section 13 of the Hindu Marriage Act, 1956.
Subsequently, the said matrimonial suit was dismissed on merit
and the same was challenged before this Court in Miscellaneous
Appeal and it is submitted by learned counsel for the opposite
party no. 2 that the same has also been dismissed for default.
Subsequent to the filing of the matrimonial
suit, the opposite party no. 2 filed Complaint Case No. 2780 of
2004 alleging torture for non-fulfillment of further dowry demand
and performance of second marriage by the petitioner.
Consequently, in the complaint case processes were directed to be
issued after cognizance being taken for the offences punishable
under Sections 498A/494 of the Indian Penal Code and Sections
Patna High Court Cr.M isc. No.15013 of 2016 (21) dt.23-03-2018 3
3/4 of Dowry Prohibition Act, wherein the trial has concluded and
the petitioner has only been convicted for offence punishable
under Section 494 of the Indian Penal Code vide judgment dated
13.07.2017 passed by learned Sub-divisional Judicial Magistrate
(East), Muzaffarpur.
The opposite party no. 2 filed Misc. Case No.
112 of 2004 before the Principal Judge, Family Court,
Muzaffarpur on 25.11.2004 claiming maintenance under Section
125 of the Code of Criminal Procedure (hereinafter called as the
„Code‟). The Principal Judge, Family Court, Muzaffarpur disposed
of the Maintenance Case No. 112 of 2004 vide order dated
19.05.2007 and directed for making payment of Rs.6,000/- per
month to opposite party no. 2 and her minor daughter from the
date of filing of the maintenance application i.e. 25.11.2004.
Immediately after disposal of the maintenance case on 25.11.2004,
the opposite party no. 2 filed Misc. Case No. 14 of 2007 on
01.09.2007 under Section 27 of the Code for enhancement of
quantum of maintenance amount of Rs.25,000/- on the ground that
the cost of living has been enhanced and she has to make payment
of Rs.2500/- tuition fee for the study of her daughter. Moreover,
the petitioner has opened an Automobile company and his turn
over is more than Six crores in a year. Consequently, learned
Patna High Court Cr.M isc. No.15013 of 2016 (21) dt.23-03-2018 4
Principal Judge, Family Court, Muzaffarpur disposed of Misc.
Case No. 14 of 2007 vide order dated 15.03.2013 enhancing the
monthly maintenance from Rs.6,000/- to 10,000/-. Being
aggrieved by the order of the Principal Judge, the opposite party
no. 2 preferred Criminal Revision No. 452 of 2013 before this
Court. The said criminal revision was disposed of by a Bench of
this Court vide order dated 04.01.2016 enhancing the maintenance
amount from Rs.10,000/- to 25,000/-. Order dated 04.01.2016 as
contained in Annexure-1 reads as follows:-
“In view of the salary slip filed by the
petitioner saying that the Opposite Party No.
2 earns Rs.12 lacs per year, the order dated
15.3.2013 passed by the Principal Judge,
Family Court, Muzaffarpur in Maintenance
Case No. 112 of 2004 (Misc. Case No. 14 of
2007) is hereby modified to the extent that
the amount of maintenance be increased to
Rs.25,000/- per month from today.
The Court below is directed to conclude the
proceedings positively within a period of two
months from the date of receipt of this order
without granting unnecessary adjournments
Patna High Court Cr.M isc. No.15013 of 2016 (21) dt.23-03-2018 5to any party.
The application stands disposed of.”
Thereafter the petitioner filed present
modification application on 04.04.2016. The said Bench issued
notice to the opposite party no. 2 vide order dated 27.04.2016. The
order dated 27.04.2016 reads as follows:-
“It has been submitted that the petitioner
wishes to settle the dispute finally with the
Opposite Party No. 2.
In the interest of the Parties, issue notice to
the Opposite Party No. 2 for which requisites
etc. under ordinary process as well as
registered cover with A/D. must be filed
within ten days, failing which this application
as against her shall stand rejected without
further reference to the Bench.
Notice through ordinary process shall go to
the Court concerned to be served upon the
counsel appearing on behalf of the Opposite
Party No.2.
Rule is made returnable within six weeks.”
On appearance of the opposite party no. 2 the
Patna High Court Cr.M isc. No.15013 of 2016 (21) dt.23-03-2018 6
matter was placed for Admission vide order dated 22.06.2016
which reads as follows:-
“Since the Opposite Party No. 2 has
appeared, put up for Admission.”
Thereafter the concerned Court directed for
putting up of the matter before another Bench vide order dated
13.07.2016 which reads as follows:-
“Put up this matter before another Bench
after taking necessary permission from
Hon‟ble the Chief Justice.”
Consequently the mater was placed before
this Court.
Since last more than one year the matter was
adjourned on the joint prayer of the parties to resolve the issue.
Though, it is submitted by learned counsel for the petitioner that
he is ready to make payment of one time settlement amount of
Rs.Fifty lacs and also to provide further financial help at the time
of marriage of the daughter, but the counsel for opposite party no.
2 submits that opposite party no. 2 is not ready to accept the offer.
In view of the fact that the petitioner disputes
the quantum expenditure as claimed by opposite party no. 2,
whereas the quantum of income claimed by the petitioner is
Patna High Court Cr.M isc. No.15013 of 2016 (21) dt.23-03-2018 7
disputed by the opposite party no.2, the issue is not likely to be
resolved.
In view of this Court, considering the
conflicting stand of the parties, the modification of an order
passed by a bench of this Court in exercise of revisional
jurisdiction will amount to exercise of power of review which is
prohibited under Section 362 of the Code. Moreover, any
modification of the order requires leading evidence which
can only be done by the learned court below in exercise of
jurisdiction under Section 127 of the Code which permits
alternation in allowance on proof of change circumstances of any
person.
Learned counsel for the petitioner submits
that let this modification application be disposed of with liberty to
raise all the contentions in a fresh application filed under Section
127 of the Code before the Principal Judge, Family Court,
Muzaffapur.
Accordingly, the present modification
application is disposed of with liberty to the petitioner to file fresh
application under Section 127 of the Code after serving of the
copy of the petition to the counsel for opposite party no. 2, which
will be disposed of by the learned Court below within the
Patna High Court Cr.M isc. No.15013 of 2016 (21) dt.23-03-2018 8
parameters of Section 127 of the Code within a time frame after
giving due opportunity of hearing to both the parties.
(Dinesh Kumar Singh, J)
DKS/-
U T
