AMIR PASI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner-husband has impugned the order dated 25.9.1997 passed by the Family Court, Dhanbad, by reason of which, being approached by the wife-opposite party, the Court has enhanced the monthly maintenance allowance from Rs. 150/- to Rs. 500/- per month exercising its power under Section 127 of the Code of Criminal Procedure.

(2.) The facts, which are not in dispute, are that the opposite party is the lawfully wedded wife of the petitioner and she some time in 1978, filed a petition before the Chief Judicial Magistrate, Dhanbad under Section 125, Cr.P.C. claiming mainte- nance. The petitioner contested the claim but by order dated 31.1.1978 the Chief Judicial Magistrate directed the petitioner to pay Rs. 150/- per month as monthly maintenance allowance for her as well as her three minor children considering the earning of the petitioner as Rs. 600/- by way of monthly salary. Subsequently, in the year 1997 an application under Section 127 of the Code was filed, inter alia, asserting that whereas the salary of the husband-petitioner has been increased to the tune of Rs. 5,000/- per month, she is getting Rs. 150/- a month, due to which she is unable to meet her monthly expenses as price of essential commodities has readied a sky limit. Tlie son as AW 2 has also supported the case of his mother by stating that she has no other source of income and is unable to maintain herself in such a petty sum of Rs. 150/-. According to him, his father is getting a salary of Rs. 5,000/- per month for working in Lodna colliery of the BCCL. Neither the wife nor the son were subjected to any cross-examination and as such, their testimonies stand uncontroverted. However, the petitioner-husband had taken a stand that his wife lives with his younger brother Subir Pasi, with whom she has illicit relationship. He has refuted the claim of the wife that his monthly salary was Rs. 5,000/- per month but has admitted that he gets a monthly salary of Rs. 3005/-. Considering the facts and circumstances and the evidence on record, he Family Court disbelieved the evidence of the petitioner that his wife was having illicit relationship with Subir and considering that all the three children have now become major and thus not en ti tied for the maintenance but has allowed a sum of Rs. 500/- per month as maintenance to the wife.

(3.) Mr. Jha, learned Counsel appearing on behalf of the petitioner, has contended that in view of the fact that an order of maintenance under Section 125, Cr.P.C. was passed by the Chief Judicial Magistrate, Dhanbad on 31.1.1978, the Family Court had no jurisdiction to entertain the application filed in the same case under Section 127 of the Code. Referring to various annexures learned Counsel further contended that when the brother of the petitioner namely, Subir, after death of his first wife, remarried the opposite party Sugmanti Pasin, the petitioner cannot be directed to pay the enhanced monthly maintenance to her.