1. This revision application has been preferred for setting aside the judgment and order dated 02.01.2018 passed by learned Principal Judge, Family
Court, Nalanda at Biharshariff in Matrimonial Case No. 25 (M) of 2010. By the impugned judgment, the learned Family Court has been pleased to
direct the husband-petitioner to pay a maintenance amount of Rs.5,000/- to the applicant no. 1-O.P. No. 1 and Rs.2,000/- to the applicant no. 2-O.P.
No. 2 w.e.f the date of application i.e. 01.04.2010. The applicants in the Family Court are the wife and daughter respectively of the present petitioner.
Brief Facts of the Case
2. The applicants-opposite parties in the Family Court claimed that this petitioner was married to applicant no. 1 in the year 1990 in the month of
Baisakh and she went to her matrimonial home where she gave birth to a child who is applicant no. 2-O.P. No. 2. It was alleged that the husband of
the applicant no. 1 was demanding a motorcycle and cash, since the demands could not be fulfilled, therefore, the applicant no. 1 along with her minor
daughter was thrown out of the matrimonial home. She filed a complaint case bearing No. 260 (C) of 1995 in the court of learned Chief Judicial
Magistrate, Nalanda at Biharshariff. The applicant no. 1 claimed that since her ouster from the matrimonial house, she was residing at Karah Bazar
(Naihar) and was facing a lot of trouble in leading her life with the minor daughter.
3. It was further the case of the applicants that the present petitioner was having an income of Rs.40,000/- per month but he was neglecting his wife
and minor daughter.
4. Per contra, the case of the husband-petitioner in written statement was that he was never married with applicant no. 1, the applicant no. 1 never
came to stay with him in his native place, therefore, there was no question of giving birth to a child out of the wedlock. He further claims that in the
Complaint Case No. 260 (C) of 1995, an order of acquittal has been passed on 29.05.2004.
5. The husband-petitioner further denied his income and claimed that applicant no. 1 earns sufficiently from stitching and teaching from private tution.
He also claimed that he was mentally ill since 1998 and was under treatment by Dr. K.M. Das for mental disease.
6. The father of applicant no. 1 had stated in his deposition that applicant no. 1 was matriculate and he had married his eldest daughter in the year
1990, therefore, the question of marriage of second daughter in the same year does not arise. The petitioner claimed that he hardly earns Rs.10,000/-
per month.
Evidences Adduced by the Parties.
7. On behalf of the applicants, four witnesses deposed and some documents were also exhibited. Mother of applicant no. 1 deposed as A.W. 1 who
has stated that the applicant no. 1 was married to this petitioner in the year 1990 and ‘Ruksadi’ had taken place in the year 1992. She further
deposed that in the year 1994 applicant no. 1 had given birth to applicant no. 2. According to this witness, applicant no. 1 was thrown out of the
matrimonial home because the demand of motorcycle and cash could not be fulfilled. She has stated that the applicant no. 1 has little educational
background whereas her husband (petitioner) is an MBBS Doctor and he is running his own clinic from which he earns Rs.40,000/-per month. In her
cross-examination, this witness has stated that applicant no. 1 was married to the petitioner in the year 1990 and after her ‘Ruksadi’ in the year
1992, she had stayed in her Sasural for 2-2 and ½ months. She further alleged that the petitioner has already performed second marriage with one
Sarita Devi who hails from Begusarai.
8. The A.W. 2 has deposed that he had got printed the marriage card of applicant no.1 in the year 1990 at the instance of her father and he has
proved the marriage card saying that it is original. A. W. 3 is a person acquainted with both the parties who has deposed that this petitioner was
married with applicant no.1 about 20-22 years back. He also deposed that the petitioner is running his clinic. This witness is related to the petitioner.
A.W. 4 is another person who knows both the parties. He also supported the factum of marriage.
9. On behalf of the opposite party-petitioner, three witnesses were examined. This petitioner deposed as O.P.W. 3. He claimed that he has been
married with one Sarita Devi in the month of February, 1995 and has got one daughter and two sons from the said marriage. He denied his marriage
with applicant no.1 and deposed that applicant no. 2 is not his daughter. He also denied being involved in running any nursing home and he claimed that
he does not work as medical practitioner. The O.P.W. 1 and O.P.W. 2 are the co-villagers and brother of O.P.W. 3 who have supported the case of
the opposite party.
Findings of the Family Court
10. The learned Principal Judge of the Family Court has, upon analysis of the evidences and the materials in form of oral evidences and marriage card
(Exhibit-2) indicated that the applicant no.1 was married to the opposite party. The witnesses on behalf of the applicant had stated that the applicant
no. 1 was ill-treated because of non-fulfillment of demand of dowry and after giving birth to her daughter, she had been living in her naihar. According
to learned Principal Judge, Family Court filing of the complaint case itself provides sufficient reasons to say as to why applicant no.1 was residing at
her naihar. It has further been held that the applicant no.1 is not well educated and she does not have any work, therefore, she was fully dependent on
her father who is also ill and in a weak condition to support the applicants. The opposite party had failed to produce any evidence to show that the
applicant no.1 is engaged in any work and is able to earn sufficiently to maintain herself and her daughter. The Family Court finally concluded that the
opposite party runs his clinic at Sampatchak from which he earns Rs. 40,000/- per month.
Submissions on behalf of the Parties
11. While assailing the impugned judgment, it has been brought to the notice of this Court that the applicant no.1 died during pendency of this
application on 28.02.2023 and the opposite party no.2 has become major and she has been married at present. Thus, at this stage, Mr. Anjani Kumar,
learned Senior counsel for the petitioner has taken a plea that the order passed by learned Principal Judge, Family Court is not a decree, therefore, the
same cannot be executed by the applicant no. 2-O.P. No.2 who is the legal heir of the deceased-O.P. No.1. It has further been contended that once
the O.P. No.2 is married, she would also not be entitled for maintenance. In fact, the submissions advanced on behalf of both the parties have been
elaborately taken note of by this Court in its order dated 08.12.2023 while reserving the judgment in this case. This Court deems it just and proper to
reproduce the entire order dated 08.12.2023 hereinbelow:-
Order Dated 08.12.2023
“Heard Mr. Anjani Kumar, learned senior counsel assisted by Mr. Sanjay Kumar, learned counsel for the petitioner and Mr. Suraj Narayan Yadav,
learned counsel for the opposite parties.
2. At the outset, Mr. Anjani Kumar, learned senior counsel has submitted that in this case, opposite party no. 1 died during pendency of this application
on 23.02.2023, therefore, a question would arise as to whether in case the impugned order sustains, the maintenance allowance may still be recovered
by her legal heir who is O.P. No. 2.
3. Learned senior counsel has relied upon a judgment of the Hon’ble Bombay High Court in Civil Application No. 8775 of 2023 in Family Court
Appeal No. 35 of 2021 (Jayshree @ Pushpa and Anr. versus Satyendra). It is submitted that in the said case, the Hon’ble Division Bench of
Bombay High Court, Aurangabad Bench held that right to maintenance is a right in personam and not in rem, therefore, right to sue does not survive in
favour of the legal heir who is married daughter of the deceased.
4. Learned senior counsel further submits that in this case, the present petitioner had taken a stand in the learned court below that the O.P. No. 1 was
not his wife and O.P. No. 2 was not his daughter. His case was that the O.P. No. 2 had lodged a complaint case bearing No. 260 (C) of 1995 with
false allegations and the said complaint case was dismissed by the learned Magistrate after O.P. No. 1 being complainant failed to prove her marriage
with the petitioner.
5. Learned senior counsel has assailed the impugned order on the ground that the learned Principal Judge, Family Court has wrongly recorded a
finding that the marriage between the petitioner and O.P. No. 1 was solemnised in the month of Baisakh in the year 1990 in accordance with Hindu
Rites and Customs and then O.P. No. 2 was born in the year 1994 out of the said wedlock. He has relied upon a judgment of the Hon’ble
Supreme Court in the case of Yamunabai Anantrao Adhav versus Anantrao Shivram Adhav and Anr. reported in AIR 1988 SC 644 (in paragraph
‘6’) to submit that to succeed in a case under Section 125 Cr.P.C., it is incumbent upon the applicant to prove that she is a wife of the opposite
party. In this case, since the O.P. No. 1 could not prove her marriage with the petitioner, the impugned order would stand vitiated.
6. On the other hand, Mr. Suraj Narayan Yadav, learned counsel for the O.P. No. 2 submits that after the death of O.P. No. 1, he has brought on
record the information regarding her death and it is his submission that O.P. No. 2 being the Class-I legal heir of O.P. No. 1 shall be entitled to realise
the amount of maintenance which had become due to the deceased O.P. No. 1 prior to her death.
7. Learned counsel has submitted that in the case of Jayshree @ Pushpa (supra), the Hon’ble Bombay High Court was dealing with a case in
which an application under Section 127 Cr.P.C. was filed by the mother of the applicant daughter who was married but the said application was still
pending and the enhancement in the maintenance amount had not taken place. Since no right had been determined and crystalised under Section 127
Cr.P.C., the Hon’ble Bombay High Court took a view that right to maintenance was a right in personam and not in rem.
8. It is submitted that so far as the present case is concerned, the application under Section 125 Cr.P.C. had already been decided and the amount
having been determined and crystalised, if the criminal revision fails, the said amount shall be realised and the order may be executed at the instance
of the daughter of the deceased-wife. Learned counsel has relied upon Section 128 of the Code of Criminal Procedure to submit that the order of
maintenance is enforceable in accordance with law.
9. Learned counsel further submits that so far as the dismissal of the complaint case is concerned, the said dismissal was challenged by the
complainant in Cr. Appeal (SJ) No. 9 of 2005 which has been disposed of vide order dated 04.07.2013. This Hon’ble Court has, while dismissing
the criminal appeal, observed and made it clear that in case the appellant chooses to get her grievance redressed in the Family Court, any findings and
observations made in the instant case shall not come in her way. Thus, it is submitted that dismissal of the complaint cannot be cited to prejudice the
case of the opposite parties.
10. Learned counsel further submits that O.P. No. 2 was married in the month of May 2018, therefore, on the date of the impugned judgment i.e.
02.01.2018, she was still entitled for maintenance. He has relied upon the judgment of the Hon’ble Supreme Court in the case of Jagdish Jugtawat
versus Manju Lata and Others reported in (2002) 5 SCC 422 and on a judgment of this Court in the case of Subhash Roy Choudhary versus The State
of Bihar and Others reported in 2003 (3) BLJR 2310. It is submitted that the daughter would be entitled to get maintenance till the date of her
marriage.
11. Learned counsel further submits that in this case earlier this Court had stayed the execution of distress warrant issued against the petitioner,
though the impugned judgment was not stayed but because the execution of distress warrant was stayed, the petitioner did not pay any amount and not
a single farthing was paid to the deceased-O.P. No. 1 during her lifetime or to O.P. No. 2. Thus, they have lived in penury condition awaiting the
result of the case.
12. Submission is that so far as the income of the petitioner is concerned, the same is not subject matter of any challenge as no submission has been
made in dispute, therefore, the quantum of maintenance allowed by the learned Principal Judge, Family Court is in accordance with the ratio of the
judgment of the Hon’ble Supreme Court in the case of Rajnesh Versus Neha and Anr. reported in (2021) 2 SCC 324.
13. Since the parties have concluded their arguments, let this case be listed for judgment on 18th December, 2023.â€
Consideration
12. From the submissions advanced on behalf of the parties as regards the filing of the complaint case by O.P. No. 1 and acquittal of the petitioner in
the said case, this Court has noticed that after dismissal of the complaint case which resulted in acquittal of the petitioner, O.P. No. 1 had preferred a
Cr. Appeal (SJ) No. 9 of 2005 which was disposed of vide order dated 04.07.2013 by dismissing the criminal appeal but at the same time, this
Hon’ble Court had made it clear that to get her grievance redressed in the Family Court, any findings and observations made in the instant case
shall not come in her way. In view of the observations of the Hon’ble Court in Cr. Appeal (SJ) No. 9 of 2005, this Court would agree with the
submission of learned counsel for the opposite party that the findings and observations of the learned Family Court have to stand on their own footing.
Dismissal of the complaint case and the appeal arising out of the same would not have any impact on the findings of the learned Family Court.
13. On perusal of the impugned judgment, this Court has noticed that the learned Principal Judge, Family Court has relied upon the evidences of the
mother of applicant no. 1 and three independent persons whereas the opposite party-petitioner did not produce any independent person and he sought
to support his case with the help of one of his gotiya and his own brother. The petitioner though took a plea that the applicant no. 1-O.P. No. 1 is not
his wife but he never moved to a competent court of law to get a declaration to that effect. On the face of the materials which were brought before
the learned Principal Judge, Family Court, Nalanda at Biharshariff, in the opinion of this Court, the findings of the Family Court that the applicant no. 1
happens to be the wife of the petitioner cannot be disturbed.
14. A bare glance over the provision of Section 125 CrPC would make it clear that this provision has been incorporated in Chapter IX of the CrPC to
provide immediate succor to the wife who is unable to maintain herself or the legitimate or illegitimate minor child including a daughter not being
married daughter of a person who is having sufficient means who neglects his wife and minor children to maintain. The third proviso to Sub-Section
(1) of Section 125 CrPC provides that an application for interim maintenance and expenses of the proceeding is to be disposed of within 60 days from
the date of service of notice of the application to such person. It shows the urgency with which the application for maintenance/interim maintenance is
to be considered. There are some exceptions to the Rule providing for maintenance/interim maintenance to a neglected woman. According to the
exceptions, a wife would not be entitled to receive an allowance for maintenance or the interim maintenance and expenses of proceeding from her
husband if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual
consent.
15. Apparently, in this case, the exceptions would not apply as it is not the case of the petitioner that his wife was living in adultery or had refused to
live with him. His only stand was that he had not been married to applicant no. 1 and applicant no. 2 is not born of his marriage with applicant no. 1 but
as observed hereinabove, there is no declaration to this effect by a competent court of law.
16. As regards the income of the petitioner, he has explained in his affidavit before this Court hat he had done MBBS which means Bachelors of
Medicine in Biochemic System. He has denied his income of Rs.40,000/- per month and claims that he is earning only Rs.10,000/- per month. To this
Court, it appears that the petitioner has disclosed his income half-heartedly and on the point of his income, he has not disclosed his all the sources of
income. In the case of Rajnesh Versus Neha and Anr. reported in (2021) 2 SCC 324, the Hon’ble Supreme Court has laid down some guidelines
and thereunder both the parties are under obligation to file their respective affidavits declaring their income and other sources. However, this Court
finds that at this stage, it would only be prudent to test the correctness of the impugned order on the basis of the materials which were before the
Family Court at the relevant time. In the facts of this case where O.P. No. 1 has already died after contesting the case since the year 2010 and has
not got a single farthing from the petitioner during her lifetime and the O.P. No. 2 has also attained majority and got married without any help from the
petitioner, no purpose would be served by remitting the matter to determine the income of the opposite party-petitioner. A reasonable view has to be
taken and in the opinion of this Court, since the opposite party-petitioner did not disclose his all the sources of income and other assets and only
vaguely denied the claim of the applicant that he was earning Rs.40,000/- per month, the opposite party-petitioner did not come out clean and he did
not disclose his correct income. This Court is, therefore, of the considered opinion that the amount of maintenance awarded to the applicants by the
learned Family Court are not unreasonable or excessive that it would require any interference of this Court.
17. The aforesaid discussions would lead this Court to conclude that in this case, the findings of the learned Family Court as regards the applicant no.
1 being wife of the opposite party-petitioner and the quantum of maintenance awarded to both the applicants need no interference. The opposite party
no. 1 would be entitled for maintenance as per the order of the learned Family Court till the date of her death i.e. 28.02.2023 and the applicant no. 2-
O.P. No. 2 would be entitled for maintenance till the date of her marriage.
18. Now, the question which remains to be considered is as to whether after death of opposite party no. 1, her daughter (O.P. No. 2) would be entitled
to realise the outstanding amount?
19. Learned senior counsel has relied upon the judgment of the Hon’ble Bombay High Court in the case of Jayshree @ Pushpa and Anr. versus
Satyendra (Civil Application No. 8775 of 2023 in Family Court Appeal No. 35 of 2021). This Court has carefully gone through the judgment of the
Hon’ble Bombay High Court. The facts of the case are totally distinguishable. In the said case, the wife had filed an application under Section 127
CrPC which was still pending for adjudication. During pendency of the application under Section 127 CrPC, the wife died. In such circumstances, the
Hon’ble Bombay High Court held that since no right had been determined and crystallized under Section 127 CrPC, the application filed by the
married daughter of the deceased under Order XXII Rule 1 and 2 of the Code of Civil Procedure seeking permission to bring her on record cannot be
allowed. It is in that context, the Hon’ble High Court framed a legal issue as to whether the right to sue survives/lies with the legal heirs of the
deceased appellant in the appeal for enhancement of maintenance in the personal law i.e. Hindu Adoption and Maintenance Act.
20. This Court is, therefore, of the considered opinion that the judgment of the Hon’ble Bombay High Court in the case of Jayshree @ Pushpa
(supra), would not help the petitioner. Learned counsel for the O.P. No. 2 has rightly pointed out the two judgments which have been referred by the
Hon’ble Bombay High Court in the case of Jayshree @ Pushpa. It is submitted that in the case of Annadurai versus Jaya reported in 2023 Online
Mad 2604, it has been held by the Hon’ble Madras High Court that the claim of arrears of maintenance of deceased wife is heritable right of legal
heirs, however, the right of future is not transferable. The another judgment of Hon’ble Bombay High Court in the case of Gangabai versus
Bhagwn reported in (2007) Mh. LJ. 223 has been taken note of by the Hon’ble Bombay High Court wherein it has been held that object and
social principles under Section 125 CrPC is not only against the husband but against the husband’s property also.
21. This Court has no iota of doubt that the arrears of maintenance of the applicant no. 1-O.P. No. 1 would be heritable right of O.P. No. 2 and she
would be within her rights to enforce the order of maintenance in the manner provided under Section 128 CrPC read with Section 18 of the Family
Court Act, 1984.
22. In the light of the discussions made hereinabove, this revision application would fail.
23. Since the opposite party-petitioner has not paid a single farthing to O.P. No. 1 during her lifetime and O.P. No. 2 till the date of her marriage and
despite there being a judgment in their favour, they could not get any fruit of the judgment, this Court is of the considered opinion that the entire arrear
amount shall be realised from the petitioner with interest at the rate of 6% per annum. The petitioner shall also pay a cost of litigation which is
assessed at Rs.25,000/- (Rupees Twenty Five Thousand Only/-) to the opposite party no. 2.
24. This revision application is dismissed with cost.
