Disposed¶25

Abhijeet Kumar v. the State of Bihar

Patna HC9 Feb 2024CR. REV./33/2020

Case brief

AI extract

What is this about?

Keywords: maintenance of wife; Section 125 (parent Act not named in judgment); husband's presumed/deemed income as day labourer; Minimum Wages Act benchmark; one-third share of income to wife; reduction of maintenance from Rs. 5,000 to Rs. 4,000 per month; no income documents filed; Family Court Muzaffarpur; Maintenance Case No. 80 of 2016; divorce suit filed 2014; Kamal v. State of U.P. (Allahabad HC); Anju Garg v. Deepak Kumar Garg (SC).

What did the court decide?

Impugned maintenance order modified: maintenance reduced from Rs. 5,000/- to Rs. 4,000/- per month, payable by the petitioner to the opposite party/wife within the 15th of each succeeding month, along with arrear maintenance as per the trial court's directions; Revision disposed of. ¶25

Abhijeet Kumar Vs the State of Bihar — Patna HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

¶25

Issue for consideration

Whether the petitioner/husband has the financial capacity to pay the maintenance allowance of Rs. 5,000/- per month as directed in the impugned order of the Family Court, Muzaffarpur. +1 more

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Court's answer

The order of maintenance dated 14-10-2019 passed in Maintenance Case No. 80 of 2016 by the Principal Judge, Family Court, Muzaffarpur is modified; the petitioner is to pay Rs. 4,000/- per month by the 15th of each succeeding month, with arrear maintenance as directed by the trial court.

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Ratio / Principle

Even accepting the petitioner's submissions as to his limited means, Section 125 casts a duty upon the husband to maintain his wife.

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Key takeaways

Applying the principle in Kamal v. State of U.P. (which relied on Anju Garg v. Deepak Kumar Garg), where the husband claims to be a day labourer and no income documents were filed, his income is presumed to be Rs. 12,000/- per month on the basis of the Minimum Wages Act.ratio¶22
The wife is entitled to one-third of the husband's presumed monthly income of Rs. 12,000/-, i.e., Rs. 4,000/- per month as maintenance allowance.ratio¶22

Detailed headnote1 paragraphs

Patna High Court (Bibek Chaudhuri, J., 09-02-2024) disposed of Criminal Revision No. 33 of 2020 against the order dated 14-10-2019 of the Principal Judge, Family Court, Muzaffarpur in Maintenance Case No. 80 of 2016, which had fixed maintenance at Rs. 5,000/- per month. Holding that Section 125 casts a duty upon the husband to maintain his wife, and taking into account Kamal v. State of U.P. (Allahabad High Court, Criminal Revision No. 461 of 2023, decided 25-01-2024), which relied on the Supreme Court decision in Anju Garg v. Deepak Kumar Garg (2022 AIR Online SC 306), the Court presumed the day-labourer husband's income at Rs. 12,000/- per month on the basis of the Minimum Wages Act and held the wife entitled to one-third thereof. The impugned order was modified, reducing maintenance to Rs. 4,000/- per month, payable by the 15th of each succeeding month, with arrears as directed by the trial court.

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL REVISION No.33 of 2020

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

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

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ABHIJEET KUMAR Son of Shree Jeera Prasad Sah Resident of Village - Lalu Chapra, P.S.- Paroo, Distt - Muzaffarpur.

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... ... Petitioner/s

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Versus

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THE STATE OF BIHAR

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Rubi Kumari Wife of Abhijeet Kumar Resident of Village - Lalu Chapra, P.S.- Paroo, Distt - Muzaffarpur. At present D/o Govind Prasad Gupta, Resident of Ratavara Hathu, P.S.- Paroo, Distt - Muzaffarpur.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr.Prithvi Nath Mishra For the Respondent/s : Mr.Nirmala Kumari ======================================================

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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL ORDER

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3 09-02-2024

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An order of maintenance passed in Maintenance

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Case No. 80 of 2016 by the learned Principal Judge, Family Court, Muzaffarpur on 14^th October, 2019 is assailed in the instant Revision on the ground that the petitioner/husband does not have the financial capacity to pay maintenance allowance at the rate of Rs. 5,000/- per month as directed by the learned Judge in the impugned order.

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In support of such contention, it is submitted by the learned Advocate for the petitioner that the petitioner is the owner of only 5 katthas of land. The said land is under the possession of his parents and he works as an agricultural labourers and Rs. 40,000/- per annum and he has income of Rs.

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Patna High Court CR. REV. No.33 of 2020(3) dt.09-02-2024 2/3

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20,000/- per annum from other sources, thus, the petitioner earns Rs. 60,000/- per annum. When the above made income of the petitioner is Rs. 5,000/- per month, how is it possible to pay the entire sum to maintain his wife.

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It is also submitted by the learned Advocate for the petitioner that the petitioner has already filed a Suit for divorce in the year 2014. The maintenance case was filed by the petitioner as a matter of retaliation, it is not possible for him to pay the amount of maintenance as directed by the learned trial Judge.

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Even if, entire submission made by the learned Advocate for the opposite parties be accepted. It is to be held that Section 125 casts a duty upon the husband to maintain his wife.

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It is true that the parties did not file any document in support of their income in the trial court. However, in Kamal vs. State of U.P., decided by a coordinate Bench of Allahabad High Court in Criminal Revision No. 461 of 2023 on 25^th January, 2024 that when the husband claims to be a day labourer, his monthly income is to be considered on the basis of the Minimum Wages Act. Taking into account, the principle laid down in the above mentioned decision which was passed

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Patna High Court CR. REV. No.33 of 2020(3) dt.09-02-2024 3/3

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relying on a Supreme Court decision in Anju Garg. vs. Deepak Kumar Garg reported in 2022 AIR Online SC 306, this court can safely hold that the income of the opposite party is presumed to be Rs. 12,000/- per month. The wife/opposite parties entitle to pay one third of the said amount. Therefore, the opposite party is entitled to pay Rs. 4,000/- per month as a maintenance allowance.

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For the reasons stated above, the order of maintenance passed in Maintenance Case No. 80 of 2016 on 14^th October, 2019 by the learned Principal Judge, Family Court, Muzaffarpur, is modified.

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The petitioner is directed to pay maintenance at the rate of Rs. 4,000/- per month to the opposite party/wife within 15^th of each succeeding month. The petitioner is also directed to pay arrear maintenance as the same date as per the direction made by the trial court.

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Accordingly, the instant Revision is disposed of.

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(Bibek Chaudhuri, J)

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Guddu/-

Abhijeet Kumar v. the State of Bihar

Case brief

What is this about?

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Abhijeet Kumar v. the State of Bihar

Case brief

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