MILIND KUMAR SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard Mr. Rupesh Singh, learned counsel for the petitioner, Ms. Archana Kumari, learned counsel for opposite party no.2 and Mr. Santosh Kumar Shukla, learned counsel for the State.

(2.) This petition has been filed for quashing of the order dtd. 27/7/2013 passed in Criminal Execution Case No.12/2011 by the learned Principal Judge, Family Court, Dumka, whereby, the learned Principal Judge, Family Court, Dumka has been pleased to reject the petition filed by the petitioner under Sec. 127 of Cr.P.C. for an order of alteration of order of permanent maintenance to the extent of its complete seizure, granted to the opposite party no.2 vide order dtd. 25/8/2011 in Criminal Miscellaneous Case No.133 of 2005.

(3.) Mr. Rupesh Singh, learned counsel for the petitioner submits that the opposite party no.2 has filed Criminal Miscellaneous Case No.133 of 2005 against the petitioner before the learned Principal Judge, Family Court, Dumka under Sec. 125 of Cr.P.C. for grant of maintenance, stating interalia that opposite party no.2 solemnized marriage with the petitioner on 26/6/1991 as per the Hindu customs and after lapse of some time, the petitioner along with his other family members started demanding dowry and torturing opposite party no.2 and refused to maintain her. He further submits that petitioner appeared in the said miscellaneous case and vide order dtd. 29/1/2007, the learned Principal Judge, Family Court, Dumka directed the petitioner to pay a sum of Rs.2,000.00 per month towards interim maintenance. He also submits that the learned Principal Judge, Family Court, Dumka vide order dtd. 25/8/2011 disposed of the said criminal miscellaneous case filed under Sec. 125 of Cr.P.C. allowing the same in favour of opposite party no.2 and directing the petitioner for a monthly maintenance of Rs.3,000.00 from August, 2011 in favour of opposite party no.2. He submits that the petitioner challenged the said order in Criminal Revision No.759 of 2011, which is still pending before this Court. He further submits that the petitioner moved before the learned Principal Judge, Family Court, Munger in Title Suit (Matrimonial) No.97 of 2008 under Sec. 12(1)(a) and (b) of the Hindu Marriage Act for grant of decree of nulllity. He submits that after issuing notice upon opposite party no.2, the learned Court has been pleased to fix the matter for ex parte and vide judgment dtd. 4/2/2013 and decree sealed and signed on 19/2/2013, the learned Principal Judge, Family Court, Munger has been pleased to allow the said Title Suit (Matrimonial) holding the marriage as null and void. He submits that in view of the judgment passed by the learned Principal Judge, Family Court, Munger declared the marriage as null and void, the petitioner filed a petition under Sec. 127 Cr.P.C. for alteration of the maintenance. He submits that the said order of decree has been challenged by opposite party no.2 before the Hon'ble Patna High Court, which is still pending. He submits that the Division Bench of the Hon'ble Patna High Court vide order dtd. 24/11/2023 directed the petitioner to show his bona fide towards settlement and pay a sum of Rs.5.00 Lakhs within a period of eight weeks from that day and the matter is fixed for 19/1/2024. He submits that in view of that, the case may kindly be adjourned till the disposal of the miscellaneous appeal before the Hon'ble Patna High Court. He further submits that in view of nullity, the impugned order passed by the learned Principal Judge, Family Court, Dumka is fit to be quashed. He submits that in view of the provision made in Sec. 11, 5(1)(i), 4 and 12 of the Hindu Marriage Act, 1956, the marriage in contravention of Sec. 5(1)(i) is void ab initio under Sec. 11 and Sec. 12 is inapplicable in such case and in view of that, opposite party no.2 is not entitled. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, reported in (1988) 1 SCC 530.