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Kumar Gaurav vs State Of Bihar & Anr on 23 March, 2018

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 5

to 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

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