Dismissed¶¶22

Md. Firoz Khan v. Sumayla Bismil

Patna HC10 Jan 2024CR. REV./1271/2018

Case brief

AI extract

What is this about?

Patna High Court, CR. REV. No.1271 of 2018, decided 10-01-2024 by Bibek Chaudhuri, J. Keywords: maintenance; Section 125 CrPC; divorced Mohammadan/Muslim wife; talak; Danial Latifi (2001) 7 SCC 740; anticipatory bail maintenance condition; adjustment in execution proceedings; Family Court East Champaran Motihari; Principal Judge Family Court; Rs. 5,000/- p.m. wife; Rs. 1,500/- p.m. child; Rs. 2,500/- p.m. bail direction; Cr. Misc. No. 39472 of 2015; West Champaran; East Champaran; revision dismissed.

What did the court decide?

No relief to petitioner: the Criminal Revision is dismissed and the Family Court maintenance order is upheld; petitioner retains liberty to apply in execution proceedings for adjustment of the Rs. 2,500/- paid under the anticipatory bail order in Cr. Misc. No. 39472 of 2015. ¶¶22

Md. Firoz Khan Vs Sumayla Bismil — Maintenance and Alimony | Patna HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether a direction to pay a sum of money imposed as a condition for anticipatory bail can be treated as an order of maintenance binding on the Family Court. +3 more

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Court's answer

A direction to pay a certain sum of money as a condition for anticipatory bail cannot be treated as an order of maintenance passed by a superior court, and the learned Judge, Family Court is not bound by that order; at best the petitioner/husband can make a prayer for adjustment of the said amount in the trial court in execution proceedings.

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Ratio / Principle

It is no longer res integra that a divorced wife belonging to the Mohammadan faith is entitled to get maintenance under Section 125 of the Code of Criminal Procedure, the law being settled by the Hon'ble Supreme Court in Danial Latifi & Anr. vs. Union of India (2001) 7 SCC 740, followed consistently in subsequent decisions.

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Key takeaways

On perusal of the impugned order, the learned Judge, Family Court was found to have considered the evidence on record in detail in passing the order; this Court found no reason to interfere with the impugned order.ratio¶¶18
While dismissing the Revision, the petitioner was given liberty to make appropriate application in the execution proceeding for adjustment of the sum of Rs. 2,500/- which he has been paying pursuant to this Court's order in Cr. Misc. No. 39472 of 2015.ratio¶¶19

Detailed headnote1 paragraphs

Maintenance under S.125 CrPC – Revision against Family Court, East Champaran (Motihari) order dated 17.07.2018 granting Rs. 5,000/- p.m. to the wife and Rs. 1,500/- p.m. for the minor child – Held: (i) a direction to pay money as a condition of anticipatory bail (here Rs. 2,500/- p.m. from Feb 2016, Cr. Misc. No. 39472 of 2015) is not an order of maintenance of a superior court and does not bind the Family Court; (ii) it is no longer res integra that a divorced wife of Mohammadan faith is entitled to maintenance under Section 125 CrPC, per Danial Latifi & Anr. v. Union of India (2001) 7 SCC 740; (iii) Family Court having considered evidence in detail, no interference warranted – Revision dismissed with liberty to the husband to seek adjustment in execution of sums paid under the bail order.

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL REVISION No.1271 of 2018

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Arising Out of PS. Case No.- Year-1111 Thana- District-

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Md. Firoz Khan Son of Late Jahir Khan, resident of Village- Anjuman Tola Pawariya Tola, Bagaha, P.S.- Bagaha, District- West Champaran.

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... ... Petitioner/s

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Versus

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Sumayla Bismil Wife of Md. Firoz Khan, Dauhgter of Ali Imam Bismil, resident of Mohalla- Chikpatti, Motihari Town, P.S.- Motihari Town, DistrictEast Champaran.

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... ... Respondent/s

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====================================================== Appearance :

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For the Petitioner/s : Mr.Umesh Chandra Verma For the Respondent/s : Mr. ======================================================

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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL ORDER

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3 10-01-2024

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An order dated 17^th July, 2018 passed by the learned Principal Judge, Family Court, East Champaran, Motihari allowing an application for maintenance filed by the opposite party no.2 and granting maintenance allowance in her favour at the rate of Rs. 5,000/- per month and also at the rate of Rs. 1500/- per month for the maintenance of their minor child, is under challenge in the instant Revision on the ground that this court while granting anticipatory bail to the petitioner/husband on 11^th January, 2016 directed the petitioner to pay Rs. 2,500/per month from February 2016 towards maintenance. Secondly, the petitioner divorced the opposite party no.2 by pronouncement of talak, and thirdly, he has no financial capacity to make payment of Rs. 6,500/- per month towards

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Patna High Court CR. REV. No.1271 of 2018(3) dt.10-01-2024 2/3

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maintenance allowance to his wife.

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I have heard the learned Advocate for the

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petitioner. I have also perused carefully the impugned order.

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At the outset, this court likes to record that a direction to pay certain sum of money as a condition for anticipatory bail cannot be treated as an order of maintenance passed by superior court and the learned Judge, Family Court is not bound by that order. At best, the petitioner/husband can make a prayer for adjustment of the said amount in the trial court in execution proceeding. Secondly, it is no longer res integra that a divorced wife belonging to mohammadan faith is entitled to get maintenance under Section 125 of the Code of Criminal Procedure. The law is settled by the Hon’ble Supreme Court in the case of Danial Latifi & Anr. vs. Union of India (2001) 7 SCC 740 which has been followed consistently in subsequent decision. On perusal of the impugned order, I find that the learned Judge considered the evidence on record in detail and passed the impugned order, therefore, I do not find any reason to interfere with the order impugned.

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However, the petitioner is given liberty to make appropriate application in the execution proceeding for adjustment of the sum of Rs. 2,500/- which he has been going

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Patna High Court CR. REV. No.1271 of 2018(3) dt.10-01-2024 3/3

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on payee as per the order passed by this court in Cr. Misc. No. 39472 of 2015.

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