Allowed¶26

Agam Kumar Jha v. the State of Bihar and Anr.

Patna HC7 Feb 2024CR. REV./1127/2019

Case brief

AI extract

What is this about?

Section 125 CrPC maintenance; criminal revision allowed; impugned Family Court Saharsa order quashed and set aside; notional income fixed on oral evidence; Panchayat unemployment certificate not marked exhibit; affidavit of assets and liabilities directed for both husband and wife; wife allegedly in government service; redetermination of maintenance within three months; interim maintenance Rs. 4,000/- per month; Patna High Court CR. REV. No.1127 of 2019; Bibek Chaudhuri, J.; decision dated 07-02-2024.

What did the court decide?

Revision allowed; impugned order dated 29.06.2019 in Miscellaneous Case No. 117 of 2017 quashed and set aside; Trial Court directed to dispose of the case on the basis of affidavits of assets and liabilities of both parties within three months; interim payment of Rs. 4,000/- per month directed meanwhile. ¶26

Agam Kumar Jha Vs the State of Bihar and Anr. — Maintenance and Alimony | Patna HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the petitioner/husband has the means to pay the maintenance of Rs. 9,000/- per month awarded under Section 125 CrPC, in view of his claim that he lost his job during the Covid period and is unemployed. +1 more

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Court's answer

The certificate issued by the local Gram Panchayat certifying the petitioner's unemployment was not marked exhibit in the Trial Court, and therefore the Trial Court rightly did not consider it.

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Ratio / Principle

Since there is no document regarding the petitioner's income and the Trial Court determined his notional income on oral evidence alone, the issue of the petitioner's means can only be adjudicated if he is directed to file an affidavit of assets and liabilities in the Court below.

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Key takeaways

The Opposite Party No. 2 is also directed to file an affidavit of assets and liabilities in the Court below within one month, and on the basis of the affidavits of both parties the learned Trial Judge is to reconsider the amount of maintenance payable to her in the Section 125 proceeding.ratio¶21
Pending redetermination, the petitioner is directed, without prejudice to the rights and contentions of both parties, to pay Rs. 4,000/- per month to the Opposite Party No. 2.ratio¶28

Detailed headnote1 paragraphs

Patna High Court (Bibek Chaudhuri, J.) allowed a criminal revision against the order of the Principal Judge, Family Court, Saharsa dated 29.06.2019 in Miscellaneous Case No. 117 of 2017 under Section 125 CrPC directing the husband to pay maintenance of Rs. 9,000/- per month. Observing that the petitioner's Panchayat unemployment certificate was not marked exhibit and was rightly ignored by the Trial Court, that there was no documentary evidence of the petitioner's income (notional income having been fixed on oral evidence), and that the wife had allegedly obtained government service, the Court held that the question of means of both parties required adjudication on affidavits of assets and liabilities. The impugned order was quashed and set aside; both parties were directed to file affidavits of assets and liabilities within one month; the Trial Court was directed to redetermine maintenance on those affidavits within three months; and interim maintenance of Rs. 4,000/- per month was directed to be paid meanwhile, without prejudice to the rights and contentions of the parties.

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL REVISION No.1127 of 2019

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Arising Out of PS. Case No.- Year-0 Thana- District- Saharsa

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======================================================

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Agam Kumar Jha, Son of Ramesh Jha Resident of Village - Chainpur, P.S.Bangoan, District- Saharsa. Presently House No.-1-B-258 Kaveri City, Loni, Gaziabad, U.P.-201102

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... ... Petitioner/s

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Versus

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The State Of Bihar

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Mrs. Saraswati Kumari, D/O Chandra Mohan Khan Resident of Village -Bangaon P.S.- Bangoan, District- Saharsa.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Prafull Chandra Thakur, Advocate Ms. Madhumala Kumari, Advocate Mr.Dinesh Choudhary For the Respondent/s : Mr.Rajiv Nayan ======================================================

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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL ORDER

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2 07-02-2024

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The instant revision is directed against an order passed by the Principal Judge, Family Court, Saharsa in Miscellaneous Case No. 117 of 2017 on 29^th of June, 2019 under Section 125 of the Code of Criminal Procedure, directing the petitioner / husband to pay maintenance allowance at the rate of Rs. 9,000/- per month.

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It is submitted on behalf of the petitioner / husband that marriage of the parties was solemnized on 29^th of April, 2013 according to Hindu rites and customs. After one month of marriage, the Opposite Party No. 2 left her matrimonial home. This fact was admitted by the Opposite Party No. 2 in her plaint

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Patna High Court CR. REV. No.1127 of 2019(2) dt.07-02-2024 2/4

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in a suit for divorce filed against her. It is further submitted by the learned Advocate for the petitioner that the petitioner wanted to maintain a happy and peaceful conjugal life, but it was the Opposite Party No. 2, who voluntarily left her matrimonial home. At the time of marriage, the petitioner used to work as a qualified Engineer with B.Tech degree in Delhi. However, he has lost his job during Covid period and at present he is unemployed, residing at his native village. Therefore, he has no source of income and it is not possible for him to pay any maintenance allowance.

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The learned Advocate for the petitioner submits that he local Gram Panchayat issued a certificate to the effect that the petitioner was unemployed.

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Having heard the learned Advocate for the petitioner and on careful perusal of the impugned order as well as other materials on record, I find that the certificate issued by the Panchayat was not marked exhibit in the Trial Court. Therefore, the Trial Court rightly did not consider such certificate issued by the local Gram Panchayat. At the same time, it is found from the record that the Opposite Party No. 2 did not file any document to show that the petitioner has been working for gain at present.

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Patna High Court CR. REV. No.1127 of 2019(2) dt.07-02-2024 3/4

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As there is no document with regard to the income of the petitioner and the Trial Court came to a finding about the notional income of the petitioner on the basis of the oral evidence, this Court is of the view that the issue regarding means of the petitioner can only be adjudicated if the petitioner is directed to file affidavit of assets and liabilities in the Court below.

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Moreover, it is submitted by the learned Advocate for the petitioner that the Opposite Party No. 2 has got a government service in the meantime and she has sufficient means to maintain herself. Therefore, the Opposite Party No. 2 is also directed to file affidavit of assets and liabilities in the Court below within one month from the date of communication of this order. On the basis of affidavits of assets and liabilities, filed by both the parties within one month from the date of this order, the learned Trial Judge reconsider the amount of maintenance which is required to be paid to the Opposite Party No. 2 in the aforesaid proceeding under Section 125 of the Cr.P.C.

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For the reasons stated above, the instant revision is

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allowed.

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The impugned order passed by the Principal Judge,

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Patna High Court CR. REV. No.1127 of 2019(2) dt.07-02-2024 4/4

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Family Court, Saharsa on 29^th of June, 2019 in Miscellaneous Case No. 117 of 2017 is quashed and set aside.

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The learned Trial Judge is directed to dispose of the case on the basis of affidavits of assets and liabilities within three months from the date of this order.

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In the meantime, the petitioner is directed, without prejudice to the rights and contentions of both the parties, to pay an amount of Rs. 4,000/- per month to the Opposite Party No. 2.

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The instant revision is accordingly allowed.

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(Bibek Chaudhuri, J)

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skm/-

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Agam Kumar Jha v. the State of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

Agam Kumar Jha v. the State of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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